A federal appeals court has agreed to block enforcement of the major provisions of a Florida law targeting social media content moderation. NetChoice and the Computer & Communications Industry Association had sought the preliminary injunction while their legal challenge of the law works its way through the courts.
In a unanimous decision penned by judge Levin Newsom, a three-judge panel of the U.S. Court of Appeals for the 11th Circuit upheld a lower court's injunction against the enforcement of provisions in the law that restrict social media platforms' ability to moderate content and that they have to come up with a "thorough rationale" for all of their content moderation decisions.
The court said both are likely unconstitutional. It declined to block enforcement of the "far less burdensome" requirement of other disclosure provisions, saying the lower court got it wrong when it blocked those as well.
The law was the product of a Republican-controlled legislature. Republicans have argued that Silicon Valley giants have attempted to suppress conservative speech in the guise of moderating their platforms and under the protection of section 230 of the Communications Decency Act, which exempts them with civil liability over most of that third-party content.
Asserting that “social media platforms have unfairly censored, shadow-banned, deplatformed and applied post-prioritization algorithms to Floridians,” the law removed civil liability protection for content on Big Tech platforms — like Facebook or Twitter — that violated the law, including allowing for monetary damages up to $250,000 per day for deplatforming political candidates for statewide office, and $25,000 for non-statewide offices.
"The question at the core of this appeal is whether the Facebooks and Twitters of the world — indisputably 'private actors,' with First Amendment rights — are engaged in constitutionally protected expressive activity when they moderate and curate the content that they disseminate on their platforms. The State of Florida insists that they aren’t," Newsom wrote in the panel decision.
By contrast, Newsom said the panel was pretty sure those Big Tech companies were, indeed, private actors engaging in protected speech. ■
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Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.