Will a Federal Appeals Court Enforce Florida’s Social Media Law?

October 13, 2021 Don Pumphrey, Jr. Criminal Defense Social Share

This past May, Governor Ron DeSantis signed SB 7072 into law. This legislation aimed to bring big tech censorship, fueled by what conservatives deem a liberal agenda, to a halt. The bill bans social media platforms from suspending the accounts of politicians and allows politicians to sue tech companies who do. It also bans such platforms “from cutting off political candidates’ posts to their platforms, changing how posts by or about a candidate are seen, or adding system comments to posts by a journalistic enterprise based on the content.” In addition, the bill would prevent platforms from labeling and preventing users from sharing certain stories with a warning that they contain disinformation. DeSantis believed such legislation was imperative in order to protect the free speech of conservatives against “Big Tech oligarchs.”

One of the prime examples that come to mind of a political figure being banned from a social media platform is Donald Trump. While president, Trump’s Twitter account was permanently suspended. Twitter provided an explanation for this suspension on their blog, even citing the specific tweets that resulted in his suspension. Upon assessing the language in the specific tweets, Twitter found that Trump’s tweets could be used by different audiences to incite violence, specifically to replicate the violent criminal acts that took place at the United States Capitol on January 6, 2021. This language went against Twitter’s Glorification of Violence policy, which aims to prevent the glorification of violence that could inspire others to replicate violent acts, resulting in his Twitter account being permanently suspended.

Challenges Quickly Arose

It took less than two months from the bill’s implementation for a federal judge to temporarily block the law. The judge held that a law that regulates how social media companies moderate the content on their platforms is a violation of the First Amendment. This is because “the government cannot force private companies to make certain editorial judgments,” a notion that has been consistently supported by legal precedent. The judge also believed the law was overly broad and not narrowly tailored, writing, “like prior First Amendment restrictions, this is an instance of burning the house to roast a pig.” Furthermore, the law conflicts with 47 U.S.C. § 230, also known as Section 230 of the Communications Decency Act (CDA) of 1996. Section 230 states that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Ultimately, this federal law allows websites that republish speech to be protected against laws that would otherwise make them legally responsible for the content their users post. As a result of the temporary block, the governor’s office appealed.

Federal Appeal

Florida is currently waiting for the United States Court of Appeals for the 11^th Circuit in Atlanta to issue a ruling on whether to overturn the preliminary injunction the federal trial judge approved that banned Florida from enforcing SB 7072. Approximately “eight Republican-led states, led by Texas, were trying to persuade the appeals court to rule in favor of Gov. Ron DeSantis,” stating in court papers that “small numbers of powerful social media companies have become gatekeepers of online content,” ultimately threatening the nation’s political discourse. However, legal experts believe the law is a clear First Amendment violation, as the Amendment is clear that private companies have the right to decide what to allow or ban from their platforms. Dean of the Widener Law School of Delaware, Rodney Smolla, not only called the law “doomed,” but said this issue may create a path for Congress to address other social policy issues, including whether social media platforms should be categorized and treated like news outlets and, in turn, if the public should be able to sue social media platforms for defamation or libel.  

This article was written by Sarah Kamide

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