Plaintiffs Fire Back Against Florida’s Censorship Law–NetChoice v. Moody

June 25, 2021 · by · in Content Regulation, Derivative Liability, Marketing

Some highlights and comments on the plaintiffs’ reply brief (see my post yesterday about the state’s attempted defense of the law).

The intro:

The State defends a law very different from the one Florida actually enacted. The Act does not regulate the “conduct” of “common carriers” or impose only “incidental” burdens on speech. It overrides online services’ protected editorial judgments, interfering with the messages those judgments express and making the State the ultimate arbiter of private companies’ speech.

The brief emphasizes the applicability of strict scrutiny because:

  • “Florida is restricting the services’ protected speech—their editorial judgments about whether and how to display user content”
  • PruneYard and FAIR don’t apply here, and Turner dictates strict scrutiny (I have no idea what Turner really stands for).
  • “these companies are nothing like ‘common carriers’—and Defendants cannot avoid the First Amendment problem by labeling them as such….Plaintiffs’ members, however, have never been ‘indifferent’ about which speakers they host or how third-party speech is presented on their platforms….Rather, they make individualized, context-specific judgments about what users and content are permitted under their policies. Congress recognized as much in Section 230, and Florida cannot ignore that these companies bear no resemblance to conduits that carry all comers without regard to content.”
    • A nice dig: “Nor is the Act anything like common-carrier regulation: instead of requiring nondiscrimination, it exempts favored speakers from the rules that apply to everyone else.”

The brief also says the law fails intermediate scrutiny if the court applies that:

  • “Defendants’ reliance on cherrypicked anecdotes of supposedly inconsistent or misguided editorial decisions only underscores that such judgments are often complex and normative, with no objective ‘right’ answer.”
  • The state “cannot explain why the State must ban all ‘deplatforming’ of candidates (and algorithmic sorting of candidate material), ban all ‘censorship’ of non-obscene journalistic content, or require the same burdensome notice for all editorial decisions”
  • “Plaintiffs’ members invest great effort in applying their policies fairly and rationally, but what the State will deem sufficiently ‘consistent’ on such inherently normative questions is anyone’s guess.”

Regarding Section 230:

  • “inconsistency is not the same as bad faith”
  • “the notion that Section 230 might somehow transform private services into state actors is baseless” (cite to Divino Group)

Re the PI standards:

  • “Defendants never meaningfully dispute that this law will open the floodgates to all kinds of objectionable and unlawful content.”
  • “because the Act’s defective definitions govern the entire statute, which singles out particular media entities, the State cannot request to sever and ‘save’ certain provisions.” (I agree with this, but I wished the plaintiffs had made this point clearer both in their initial filings and this reply. The regulations are predicated on unjustified Internet exceptionalism and other unsupportable distinctions between speakers and content, and none of that can be saved through severing. It’s baked into the law’s architecture, including its definitions.)

The court hearing is on Monday. The future of the Internet hangs in the balance. I hope the Internet wins.

Case library (see also NetChoice’s library)