Florida’s social media moderation ban is probably unconstitutional, says court

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A US appeals court says Florida's ban on moderation on social media likely violates the First Amendment. The Eleventh Circuit Court of Appeals upheld most of the earlier court order blocking Florida's Senate Bill 7072. The Supreme Court could step in to resolve the split caused by the ruling over Texas moderation ban.

Florida's law that heavily restricts suspensions, fact-checking, and content removal involving political candidates and media enterprises is the focus of the Eleventh Circuit ruling. Florida's defense of the law says that web platforms are quasi-governmental public spaces and are not protected by the First Amendment. The ruling was delivered by a Circuit Judge.

No one has a right to force a platform to allow her to contribute. Instead, they are digital spaces that are active in creating terms of service and deciding how to deliver and prioritize content. When a platform removes what it deems to be political rhetoric, pornographic content, or public-health misinformation, it conveys a message and engages in speech that is within the meaning.

The ruling tears apart much of the legal logic that underpins conservative attempts to restrict social network content. It addresses a concern that came up after the Buffalo shooting, whether these laws would force platforms to carry a video of the mass murder. If a video of a mass shooter's killing spree is reposted by an entity that qualifies for journalism, it would be against the law for Facebook or Twitter to remove it.

That isn't the end of the problems. The provision is so broad that it would prohibit a child-friendly platform like YouTube Kids from removing softcore pornography.

Most of the law's provisions, including its ban on content moderation, should be blocked by the lower court, according to the Eleventh Circuit. It wasn't required to rule on one of the law's strangest provisions, an exemption for companies that operate a theme park, because it was repealed in response to Disney's criticism of Florida.

Some parts of the earlier injunction that don't involve directly restricting moderation can still take effect while the lawsuit continues. Changes to the terms of service and information about how many people have viewed a piece of content are required by that rule. The rule that would have made platforms offer a thorough rationale for moderation decisions was blocked by the ruling. The court recognized the state's authority to rein in social media companies, according to the Florida Attorney General.

The decision puts the Eleventh Circuit at odds with the Fifth Circuit, which recently overturned a lower court's block of Texas HB 20. There are some differences between Florida's law and the one in House 20, but it is equally sweeping, banning any kind of moderation based on a user's viewpoint. The judges of the Fifth Circuit seemed to think that social networks were not different from internet service providers or the phone company.

NetChoice and the CCIA filed a petition with the Supreme Court. The Florida ruling offers some good news for platforms in the meantime, even though the court hasn't made a call yet.