Preliminary Injunction Hearing Against Florida’s Social Media Censorship Law

June 28, 2021 · by · in Content Regulation, Derivative Liability

Today, Judge Hinkle heard oral arguments regarding a preliminary injunction against the Florida social media censorship law (SB 7072). I felt both sides accomplished their goals in oral advocacy. I didn’t agree with Florida’s counsel, but I thought he did a competent job with the hand he was dealt. I also came away impressed with the judge. He had carefully done his homework, treated all counsel with respect, and asked incisive questions.

It was clear the judge was skeptical of the law. For example, he didn’t interrupt opening remarks from the plaintiffs’ counsel, but he quickly turned the defense counsel’s time into a back-and-forth. He seemed to call the Florida law “poorly drafted” (I believe his exact words to defense counsel: “I won’t put you on the spot by asking you if you’ve ever dealt with a statute that’s more poorly drafted”). He repeatedly raised concerns about the seeming divergence between the representations about what the statute does and what the text actually says. He also implied that the constitutional concerns were obvious (I believe he said to defense counsel, “Everyone [in the Florida legislature] had to know this was a major constitutional issue”). I’m cautiously optimistic that we’ll get a good ruling on the PI.

At my request, Brian Willen of Wilson Sonsini sent his written notes for his opening remarks on behalf of the plaintiffs:

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Florida’s new law is a sweeping attack on core First Amendment rights.

The “social media platforms” the Act targets are private companies whose businesses revolve around hosting and presenting speech.

Every day these companies are called on to make complex and often subjective value judgments about what content they want to host and how to present that content to the world. These judgments are highly expressive: they both define and articulate the norms of their specific online communities.

These judgments are also vital in protecting users from all manner of horrific, abusive, and illegal content – from terrorist propaganda to pornography, fraudulent schemes and spam.

A long line of precedent establishes that this kind of “editorial control and judgment” is speech protected by the First Amendment.

  • Tornillo is the most obvious example, but many other decisions — including an unbroken line of cases involving online services — agree.

Under these established principles, the First Amendment problems with Florida’s law are plain as day:

  • First, the Act directly suppresses protected editorial speech. It makes some editorial judgments categorically unlawful — and subjects them to draconian penalties.
  • Second, the Act makes the State the arbiter of private editorial standards. It lets the State investigate and punish private companies whenever it thinks their editorial speech is “unfair” or “inconsistent.”
  • Third, the Act chills protected speech, including by saddling a vast array of editorial judgments with detailed and onerous compelled-notice obligations. 

These are not incidental burdens. Nor is this mere regulation of conduct. The Act expressly restricts speech — and it does so on a massive and unprecedented scale.

And the stakes could hardly be higher. As our unrebutted declarations confirm, the effects of this law will be catastrophic.

  • The Act will force private online services to disseminate content they find highly objectionable — racist invective; election disinformation; and harmful personal attacks.
  • It will make it legally perilous to do the everyday kinds of content curation that makes these services user-friendly.

The collateral damage in all this will be families and others who want protection from harmful or age-inappropriate content. Or those who just want to find useful information online without a barrage of abusive attacks or annoying spam.

No case has ever approved such a frontal assault on editorial speech. PruneYard, FAIR, and Turner involved nothing like this. And Tornillo and Hurley squarely reject the idea that the State has anything like the power it now asserts. 

Florida’s blatant “intrusion into the function of editors” violates the First Amendment.

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Case library (see also NetChoice’s library)