Amicus Briefs Against Florida’s Censorship Law (SB 7072)

June 16, 2021 · by · in Content Regulation, Derivative Liability

Five amicus briefs were filed in support of the NetChoice/CCIA motion for a preliminary injunction against the Florida censorship law. Highlights:

Internet Association amicus brief:

The February 1, 2021 coup in Myanmar exemplifies the need for quick and nimble responses to rapidly changing conditions. One day after the coup, Facebook designated Myanmar a “temporary high-risk location” and announced that it would “remove ‘any calls to bring armaments’ and protect posts criticizing the country’s military.” On February 24, 2021, Facebook further updated its content-moderation policies in response to the coup, banning Myanmar’s military and “military-controlled state and media entities from Facebook.” Facebook acted due to the “clear risk of future military-initiated violence,” “[o]ngoing violations by the military and military-linked accounts and Pages since the February 1 coup, including … content that violates [its] violence and incitement and coordinating harm policies, which [it] removed,” as well as the fact that “[t]he coup greatly increases the danger posed by the[se] [on-platform] [behaviors] … and the likelihood that online threats could lead to harm offline.” Facebook explained that it was “continuing to treat the situation in Myanmar as an emergency and … remain[ed] focused on the safety of [its] community,” adding that it would “take additional measures if necessary to keep people safe.” Had it been in effect, S.B. 7072’s 30-day freeze might have prevented Facebook from taking these steps to rapidly update its rules in response to a dynamic real-world crisis—a delay that might well have cost lives.

Also, this brief performed a more robust Section 230 analysis than the plaintiff’s brief did.

RCFP et al amicus brief (the full list of signatories: Reporters Committee for Freedom of the Press, ACLU, Authors Guild, CDT, MLRC, and PEN America. This is a rare time where I agree with the Authors Guild).

Any law that permits the state to police the content of lawful speech on a private communications platform could permit government officials to force platforms to carry speech perceived as favorable to the government or to pressure platforms to remove speech perceived as unfavorable. S.B. 7072, therefore, vests the State of Florida with the pure power of the censor

EFF et al amicus brief:

Many internet users greatly benefit from moderated platforms. Users may prefer to use online platforms that endeavor to shield them from certain kinds of legal speech. Moderation allows online platforms to limit content in order to create affinity or niche communities dedicated to certain subject matters or viewpoints, or to remove hateful or harassing speech that may hinder the ability of targeted users to engage with the platform, or to stem what they perceive as harmful misinformation.

I’m grateful for the EFF’s work on this brief, but it contains multiple passages that made me cringe. A fair amount of the brief could be read as express or tacit support for the law–so much so that I wondered if this was actually an amicus brief for the state in disguise. I expect the state will gleefully cut-and-paste several passages from the EFF brief verbatim into their brief with gratitude for the EFF’s contributions. As someone who remembers what the EFF was like in the 1990s and 2000s, I barely recognize this incarnation of the EFF.

Chamber of Progress et al amicus brief (filed on behalf of nine organizations):

The Act will decrease content moderation efforts and increase consumer exposure to dangerous and harmful content. If enforced, it will create a serious risk that consumers will, contrary to the intent of the bill, have fewer options for expressing themselves online because providers will be effectively be forced to make product changes to limit liability risks. And providers who offer services to large numbers of users, without correspondingly large revenue, may be forced to close their virtual doors because of the obligations and costs. Even if there were any legitimate consumer benefit that might be expected from the Act taking effect—and there is not—that benefit would not outweigh the countervailing public interest in protecting consumers.

TechFreedom amicus brief. A strong start: “SB 7072 is, in short, a First Amendment train wreck.” Also:

No common carrier has ever had to serve customers utterly blind to their behavior. Such carriers have always been entitled to refuse service, or bar entry, to anyone who misbehaves, disrupts the service, harasses other patrons, and so on. Because SB 7072 tries to force platforms to serve even such people, it is not itself a proper common carriage regulation….

Calling the platforms “common carriers” anyway doesn’t make it so. The Florida legislature could not overturn Miami Herald or Hurley simply by declaring that newspapers or parades are “common carriers.” [paging Ohio AG Yost…U listening?]

A final thought: hey, all of the so-called liberals who over the past 15 years have championed “search neutrality” or advocated for “net neutrality, but applied to edge providers”….where u at on SB 7072? It seems like SB 7072 fulfilled your wishes, so are you going to be filing amicus briefs in support of the Florida law? If not, why not?

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