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First Legal Challenge To Florida's Unconstitutional Social Media Moderation Law Has Been Filed

Well that was fast.

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On Monday we noted that Florida Man Governor Ron DeSantis had signed into law the new blatantly unconstitutional social media content moderation bill, complete with its extra corrupt Mickey Mouse exemption for (Disney) companies who own (Disney) theme parks.

Of course, it’s one thing to just note that the bill is unconstitutional and another thing altogether to go through the annoyingly stupid process of proving that the bill is unconstitutional. Now, NetChoice and CCIA have stepped up to the plate and filed the first legal challenge to the bill (as first noted by USA Today who failed to link to the complaint).

The 70 page complaint is pretty impressive to read. The (somewhat long in its own right) Overview highlights the myriad problems in the bill. Here are just the first few paragraphs of the overview, to give you a sense of where the complaint is going.

The Act, a first-of-its-kind statute, was enacted on May 2, 2021 and signed into law on May 24, 2021 to restrict the First Amendment rights of a targeted selection of online businesses by having the State of Florida dictate how those businesses must exercise their editorial judgment over the content hosted on their privately owned websites. The Act discriminates against and infringes the First Amendment rights of these targeted companies, which include Plaintiffs’ members, by compelling them to host—and punishing them for taking virtually any action to remove or make less prominent—even highly objectionable or illegal content, no matter how much that content may conflict with their terms or policies.

These unprecedented restrictions are a blatant attack on a wide range of content-moderation choices that these private companies have to make on a daily basis to protect their services, users, advertisers, and the public at large from a variety of harmful, offensive, or unlawful material: pornography, terrorist incitement, false propaganda created and spread by hostile foreign governments, calls for genocide or race-based violence, disinformation regarding Covid-19 vaccines, fraudulent schemes, egregious violations of personal privacy, counterfeit goods and other violations of intellectual property rights, bullying and harassment, conspiracy theories denying the Holocaust or 9/11, and dangerous computer viruses. Meanwhile, the Act prohibits only these disfavored companies from deciding how to arrange or prioritize content—core editorial functions protected by the First Amendment—based on its relevance and interest to their users. And the Act goes so far as to bar those companies from adding their own commentary to certain content that they host on their privately owned services—even labeling such commentary as “censorship” and subjecting the services to liability simply for “post[ing] an addendum to any content or material posted by a user.”

Under the Act, these highly burdensome restrictions apply only to a select group of online businesses, leaving countless other entities that offer similar services wholly untouched by Florida law—including any otherwise-covered online service that happens to be owned by The Walt Disney Company (“Disney”) or other large entities that operate a “theme park.” This undisguised singling out of disfavored companies reflects the Act’s true purpose, which its sponsors freely admitted: to target and punish popular online services for their perceived views and for certain content-moderation decisions that state officials opposed—in other words, to retaliate against these companies for exercising their First Amendment rights of “editorial discretion over speech and speakers on their property.” Manhattan Community Access Corp. v. Halleck, 139 S. Ct. 1921, 1931 (2019).

Rather than preventing what it calls “censorship,” the Act does the exact opposite: it empowers government officials in Florida to police the protected editorial judgment of online businesses that the State disfavors and whose perceived political viewpoints it wishes to punish. This is evident from Governor Ron DeSantis’ own press release that touts the Act as a means to “tak[e] back the virtual public square” from “the leftist media and big corporations,” who supposedly “discriminate in favor of the dominant Silicon Valley ideology.”2 The Governor’s press release also leaves no doubt about the Legislature’s unconstitutional viewpoint discrimination: quoting a state legislator, it proclaims that “our freedom of speech as conservatives is under attack by the ‘big tech’ oligarchs in Silicon Valley. But in Florida, [this] … will not be tolerated.”

Although the Act uses scare terms such as “censoring,” “shadow banning,” and “deplatforming” to describe the content choices of the targeted companies, it is in fact the Act that censors and infringes on the companies’ rights to free speech and expression; the Act that compels them to host speech and speakers they disagree with; and the Act that engages in unconstitutional speaker-based, content-based, and viewpoint-based preferences. The legislative record leaves no doubt that the State of Florida lacks any legitimate interest—much less a compelling one—in its profound infringement of the targeted companies’ fundamental constitutional rights. To the contrary, the Act was animated by a patently unconstitutional and political motive to target and retaliate against certain companies based on the State’s disapproval of how the companies decide what content to display and make available through their services.

The Act is a frontal assault on the First Amendment and an extraordinary intervention by the government in the free marketplace of ideas that would be unthinkable for traditional media, book sellers, lending libraries, or newsstands. Could Florida require that the Miami Herald publish, or move to the front page, an op-ed or letter to the editor that the State favored, or demand that the Herald publish guest editorials in a state-sanctioned sequence? The answer is obviously no—as the Supreme Court unanimously held five decades ago in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). Yet the State now seeks to repeat that history—and to go even further by, for example, compelling the targeted companies to alter and disclose their editorial standards and to provide “detailed” information about the algorithms they use to curate content.

There’s more, but that gives you the basics right there. My guess is that Florida will challenge the standing of the two groups bringing the complaint, saying that they are not directly harmed by the bill, even if their members are. So the first fight is likely to be over the question of whether or not these trade groups are adequate stand-ins for their members. Hopefully the court recognizes that, but standing questions (as boring as they are) often become a big deal in cases like this one.

The full complaint digs deep to highlight the many, many, many unconstitutional issues with the bill, including some I had missed on my earlier readings. For example, I didn’t realize that the bill creates a new “Antitrust Violator Vendor List” but then makes it so it only can apply to social media companies (that don’t own a theme park).

Section 3 is another example of the Act’s irrational targeting of a select, disfavored group of online businesses. Although federal antitrust laws—and Florida’s counterpart statutes—apply across different industries, Section 3 irrationally singles out only the defined “social media platforms” for disfavored treatment because of their role in hosting and moderating online content. Id. Section 3 establishes an “Antitrust Violator Vendor List” of companies and individuals subject to an absolute contracting bar with the State of Florida. Id. (adding § 287.137(3)(b)). These persons and affiliates are also prohibited from receiving “economic incentives” such as “state grants, cash grants, tax exemptions, tax refunds, tax credits, state funds, and other state incentives” under Florida law…

The Antitrust Violator Vendor List may include those merely “accused of” violations by the Florida “Attorney General,” “a state attorney,” or federal authorities (subject to a cumbersome and inadequate process for contesting the Attorney General’s decision before a state administrative law judge). The Act empowers the Florida Attorney General to place an accused company “temporarily” on the Antitrust Violator Vendor List upon a finding of mere “probable cause that a person has likely violated the underlying antitrust laws.” Id. (adding § 287.137(3)(d)(1)). The absolute state contracting bar extends to an ill-defined group of officers, directors, shareholders, and even employees involved in “management” of a company placed on the List, as well as a broad group of “affiliates” of companies that are permanently placed on the List.

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Given the long list of cases that have established that allowing government officials to punish companies based on their speech is a 1st Amendment violation, this clause alone seems highly suspect. As the complaint later notes:

The Act is a smorgasbord of constitutional violations.

In the end, the main claims are saying that the bill violates both the 1st and 5th Amendment (and by association the 14th Amendment, which is what establishes that state governments are as bound to the Constitution’s limitations as the federal government is). The 5th Amendment claims have to do with due process:

The Act violates due process because it fails to provide fair warning of what conduct is being regulated. FCC v. Fox Television Stations, Inc., 567 U.S. 239 (2012). A law is unconstitutionally vague when people “of common intelligence must necessarily guess at its meaning,” Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1926), or where the law lacks definite and explicit standards thereby encouraging “arbitrary and discriminatory” application, Kolender v. Lawson, 461 U.S. 352 (1983).

There’s also an expected Commerce Clause claim, basically saying that this is an issue that only the federal government can regulate, since it’s regarding interstate commerce. And, finally, a claim that this pre-empted under both the Supremacy Clause and Section 230 itself, which has always been clear that it pre-empts any state attempt at regulating content moderation.

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It’s a good, strong complaint, and if these organizations can get over the standing hurdle, it seems to have a strong chance of success. And that’s because of just how blatant the unconstitutional aspects of the bill truly are. Of course, DeSantis and others in the Florida government were warned of all this before, and they now need to throw a ton of taxpayer money at defending their own unconstitutional culture war. And, somewhat ridiculously, many of DeSantis’ biggest fans will simply love the fact that he’s wasting their money this way.

First Legal Challenge To Florida’s Unconstitutional Social Media Moderation Law Has Been Filed

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