11th Circuit says Florida regulation of content moderation policies is unconstitutional

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The U.S. Court of Appeals for the 11th Circuit on Monday ruled it is unconstitutional for Florida to bar social media companies from banning politicians, in a major victory for tech companies that are fighting another appeals court ruling that allowed a similar law in Texas to take effect.

In a detailed, 67-page opinion, a three-judge panel of the court — all appointees of Republican presidents, including one named by Donald Trump — unanimously rejected many of the legal arguments that conservative states have been using to justify laws governing the moderation policies of major tech companies after years of accusing the tech companies of bias against their viewpoints.

Though the court struck down the most controversial aspects of the law, it did rule that some provisions could stand, including that people banned from the platforms should be able to access their data for 60 days and that the companies should disclose their rules clearly.

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The panel found that tech companies’ moderation decisions are protected by the First Amendment, which prohibits the government from regulating free speech.

“Taking stock: We conclude that social media platforms’ content-moderation activities — permitting, removing, prioritizing, and deprioritizing users and posts — constitute ‘speech’ within the meaning of the First Amendment,” the court wrote.

The ruling comes after a surprise decision earlier this month by the 5th Circuit Court of Appeals that allowed a Texas law that bans companies from discriminating against people based on viewpoint to come into force. Tech companies have filed an emergency application with the Supreme Court to block that law, which awaits a response from Justice Samuel A. Alito Jr.

After the 11th Circuit decision was published, lawyers representing the tech companies submitted it to the Supreme Court for consideration in the Texas case.

The apparent split between the circuit courts could add pressure on the Supreme Court to weigh in on whether social media companies’ content moderation decisions should be protected by the First Amendment.

“That’s really likely to prod the Supreme Court to act,” said Corbin K. Barthold, an Internet policy counsel at TechFreedom, a tech policy think tank, during a public discussion about the provision on Twitter.

Any decision would have wide-ranging effects in statehouses and on the floor of Congress, where policymakers have weighed proposals to address perceived abuses by social media companies that could collide with free speech protections.

Out of power in Washington, Republicans have turned to state legislatures to pass bills to address their accusations of social media “censorship,” which were inflamed by major companies’ decisions to suspend former president Donald Trump last year. Florida and 11 other states last week filed a brief supporting Texas in the Supreme Court case, arguing that states have a “strong interest” in ensuring tech platforms do not abuse their power.

Some lawmakers pushing for laws governing online content moderation and Supreme Court Justice Clarence Thomas have argued that tech companies should be regulated as “common carriers,” businesses like phone companies that are subject to government regulation because of the essential services they provide. The 11th Circuit panel wrote a blistering rejection of those arguments, arguing states can’t force such restrictions on tech platforms.

“Neither law nor logic recognizes government authority to strip an entity of its First Amendment rights merely by labeling it a common carrier,” the court wrote.

The judges ruled that one provision of the Florida law, which would have required tech companies to explain thoroughly why they make content moderation decisions,
violates the First Amendment. However the court ruled that other disclosure requirements, like alerting people to changes to content moderation rules, were constitutional.

Federal judge blocks Florida law that would penalize social media companies

The Computer and Communications Industry Association and Netchoice, groups representing Facebook, Google and other major tech companies, celebrated the ruling.

“This ruling means platforms cannot be forced by the government to disseminate vile, abusive and extremist content under penalty of law,” said CCIA President Matt Schruers. “This is good news for Internet users, the First Amendment and free speech in a democracy.”

Florida Attorney General Ashley Moody (R) said on Twitter that Florida was “pleased” the court upheld portions of the Florida law.

“We will continue to vigorously defend Florida’s authority to demand accountability from Big Tech,” she tweeted.


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