First Legal Challenge To Florida's Unconstitutional Social Media Moderation Law Has Been Filed
On Monday we noted that Florida Man Governor Ron DeSantis had signed into law the new blatantly unconstitutional social media content moderation bill, complete with its extra corrupt Mickey Mouse exemption for (Disney) companies who own (Disney) theme parks.
Of course, it's one thing to just note that the bill is unconstitutional and another thing altogether to go through the annoyingly stupid process of proving that the bill is unconstitutional. Now, NetChoice and CCIA have stepped up to the plate and filed the first legal challenge to the bill (as first noted by USA Today who failed to link to the complaint).
The 70 page complaint is pretty impressive to read. The (somewhat long in its own right) Overview highlights the myriad problems in the bill. Here are just the first few paragraphs of the overview, to give you a sense of where the complaint is going.
The Act, a first-of-its-kind statute, was enacted on May 2, 2021 andsigned into law on May 24, 2021 to restrict the First Amendment rights of a targetedselection of online businesses by having the State of Florida dictate how thosebusinesses must exercise their editorial judgment over the content hosted on theirprivately owned websites. The Act discriminates against and infringes the FirstAmendment rights of these targeted companies, which include Plaintiffs' members,by compelling them to host-and punishing them for taking virtually any action toremove or make less prominent-even highly objectionable or illegal content, nomatter how much that content may conflict with their terms or policies.
These unprecedented restrictions are a blatant attack on a wide range ofcontent-moderation choices that these private companies have to make on a dailybasis to protect their services, users, advertisers, and the public at large from avariety of harmful, offensive, or unlawful material: pornography, terroristincitement, false propaganda created and spread by hostile foreign governments,calls for genocide or race-based violence, disinformation regarding Covid-19vaccines, fraudulent schemes, egregious violations of personal privacy, counterfeitgoods and other violations of intellectual property rights, bullying and harassment,conspiracy theories denying the Holocaust or 9/11, and dangerous computer viruses.Meanwhile, the Act prohibits only these disfavored companies from deciding howto arrange or prioritize content-core editorial functions protected by the FirstAmendment-based on its relevance and interest to their users. And the Act goesso far as to bar those companies from adding their own commentary to certaincontent that they host on their privately owned services-even labeling suchcommentary as censorship" and subjecting the services to liability simply forpost[ing] an addendum to any content or material posted by a user."
Under the Act, these highly burdensome restrictions apply only to aselect group of online businesses, leaving countless other entities that offer similarservices wholly untouched by Florida law-including any otherwise-covered onlineservice that happens to be owned by The Walt Disney Company (Disney") or otherlarge entities that operate a theme park." This undisguised singling out ofdisfavored companies reflects the Act's true purpose, which its sponsors freelyadmitted: to target and punish popular online services for their perceived views andfor certain content-moderation decisions that state officials opposed-in otherwords, to retaliate against these companies for exercising their First Amendmentrights of editorial discretion over speech and speakers on their property."Manhattan Community Access Corp. v. Halleck, 139 S. Ct. 1921, 1931 (2019).
Rather than preventing what it calls censorship," the Act does theexact opposite: it empowers government officials in Florida to police the protectededitorial judgment of online businesses that the State disfavors and whose perceivedpolitical viewpoints it wishes to punish. This is evident from Governor RonDeSantis' own press release that touts the Act as a means to tak[e] back the virtualpublic square" from the leftist media and big corporations," who supposedlydiscriminate in favor of the dominant Silicon Valley ideology."2 The Governor's press release also leaves no doubt about the Legislature's unconstitutional viewpointdiscrimination: quoting a state legislator, it proclaims that our freedom of speechas conservatives is under attack by the big tech' oligarchs in Silicon Valley. But inFlorida, [this] ... will not be tolerated."
Although the Act uses scare terms such as censoring," shadowbanning," and deplatforming" to describe the content choices of the targetedcompanies, it is in fact the Act that censors and infringes on the companies' rightsto free speech and expression; the Act that compels them to host speech and speakersthey disagree with; and the Act that engages in unconstitutional speaker-based,content-based, and viewpoint-based preferences. The legislative record leaves nodoubt that the State of Florida lacks any legitimate interest-much less a compellingone-in its profound infringement of the targeted companies' fundamentalconstitutional rights. To the contrary, the Act was animated by a patentlyunconstitutional and political motive to target and retaliate against certain companiesbased on the State's disapproval of how the companies decide what content todisplay and make available through their services.
The Act is a frontal assault on the First Amendment and anextraordinary intervention by the government in the free marketplace of ideas thatwould be unthinkable for traditional media, book sellers, lending libraries, ornewsstands. Could Florida require that the Miami Herald publish, or move to thefront page, an op-ed or letter to the editor that the State favored, or demand that theHerald publish guest editorials in a state-sanctioned sequence? The answer isobviously no-as the Supreme Court unanimously held five decades ago in MiamiHerald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). Yet the State now seeks torepeat that history-and to go even further by, for example, compelling the targetedcompanies to alter and disclose their editorial standards and to provide detailed"information about the algorithms they use to curate content.
There's more, but that gives you the basics right there. My guess is that Florida will challenge the standing of the two groups bringing the complaint, saying that they are not directly harmed by the bill, even if their members are. So the first fight is likely to be over the question of whether or not these trade groups are adequate stand-ins for their members. Hopefully the court recognizes that, but standing questions (as boring as they are) often become a big deal in cases like this one.
The full complaint digs deep to highlight the many, many, many unconstitutional issues with the bill, including some I had missed on my earlier readings. For example, I didn't realize that the bill creates a new "Antitrust Violator Vendor List" but then makes it so it only can apply to social media companies (that don't own a theme park).
Section 3 is another example of the Act's irrational targeting of a select,disfavored group of online businesses. Although federal antitrust laws-andFlorida's counterpart statutes-apply across different industries, Section 3irrationally singles out only the defined social media platforms" for disfavoredtreatment because of their role in hosting and moderating online content. Id.Section 3 establishes an Antitrust Violator Vendor List" of companies andindividuals subject to an absolute contracting bar with the State of Florida. Id.(adding 287.137(3)(b)). These persons and affiliates are also prohibited fromreceiving economic incentives" such as state grants, cash grants, tax exemptions,tax refunds, tax credits, state funds, and other state incentives" under Florida law...
The Antitrust Violator Vendor List may include those merely accusedof" violations by the Florida Attorney General," a state attorney," or federalauthorities (subject to a cumbersome and inadequate process for contesting theAttorney General's decision before a state administrative law judge). The Actempowers the Florida Attorney General to place an accused company temporarily"on the Antitrust Violator Vendor List upon a finding of mere probable cause that aperson has likely violated the underlying antitrust laws." Id. (adding 287.137(3)(d)(1)). The absolute state contracting bar extends to an ill-definedgroup of officers, directors, shareholders, and even employees involved inmanagement" of a company placed on the List, as well as a broad group ofaffiliates" of companies that are permanently placed on the List.
Given the long list of cases that have established that allowing government officials to punish companies based on their speech is a 1st Amendment violation, this clause alone seems highly suspect. As the complaint later notes:
The Act is a smorgasbord of constitutional violations.
In the end, the main claims are saying that the bill violates both the 1st and 5th Amendment (and by association the 14th Amendment, which is what establishes that state governments are as bound to the Constitution's limitations as the federal government is). The 5th Amendment claims have to do with due process:
The Act violates due process because it fails to provide fair warning ofwhat conduct is being regulated. FCC v. Fox Television Stations, Inc., 567 U.S.239 (2012). A law is unconstitutionally vague when people of common intelligencemust necessarily guess at its meaning," Connally v. Gen. Constr. Co., 269 U.S. 385,391 (1926), or where the law lacks definite and explicit standards therebyencouraging arbitrary and discriminatory" application, Kolender v. Lawson, 461U.S. 352 (1983).
There's also an expected Commerce Clause claim, basically saying that this is an issue that only the federal government can regulate, since it's regarding interstate commerce. And, finally, a claim that this pre-empted under both the Supremacy Clause and Section 230 itself, which has always been clear that it pre-empts any state attempt at regulating content moderation.
It's a good, strong complaint, and if these organizations can get over the standing hurdle, it seems to have a strong chance of success. And that's because of just how blatant the unconstitutional aspects of the bill truly are. Of course, DeSantis and others in the Florida government were warned of all this before, and they now need to throw a ton of taxpayer money at defending their own unconstitutional culture war. And, somewhat ridiculously, many of DeSantis' biggest fans will simply love the fact that he's wasting their money this way.