A Florida internet law is on hold while a lawsuit is being heard. Judge Robert Hinkle has issued a preliminary injunction preventing the implementation of nearly all of SB 7072, a contentious and broad regulation of social media platforms.
“The legislation now under consideration was an attempt to rein in social-media providers deemed too large and liberal. “Balancing the exchange of ideas among private speakers is not a legitimate governmental interest,” wrote Hinkle in his order. Furthermore, the law “discriminates on its face among otherwise identical speakers,” thanks in part to an unusual exemption for theme park operators. That raises the bar for determining whether the law violates the First Amendment, which Hinkle believes it most likely does.
“The legislation requires providers to host speech that violates their standards… and prohibits providers from speaking as they would otherwise”
SB 7072, signed into law by Governor Ron DeSantis in May, restricts when web services can terminate users. It includes a prohibition on suspending or annotating political candidates’ posts, a requirement that users be able to “opt out” of algorithmic sorting systems, and a “antitrust violator blacklist” for companies that violate the rules. As previously stated, the rules do not apply to “a company that owns and operates a theme park or entertainment complex,” which appeases media conglomerates such as Disney.
NetChoice and the CCIA filed a lawsuit to prevent the law from being enforced, claiming that it would compel social media platforms to host offensive speech that violated their editorial policies. On Monday, Judge Hinkle heard arguments from both groups and the DeSantis administration, and he appeared skeptical of the law, referring to the theme park exemption in particular as a “major constitutional issue.”
The injunction is similarly skeptical, summarizing the law as follows:
“The state of Florida has adopted legislation that imposes sweeping requirements on some but not all social-media providers. The legislation applies only to large providers, not otherwise-identical but smaller providers, and explicitly exempts providers under common ownership with any large Florida theme park. The legislation compels providers to host speech that violates their standards — speech they otherwise would not host — and forbids providers from speaking as they otherwise would. The Governor’s signing statement and numerous remarks of legislators show rather clearly that the legislation is viewpoint-based. And parts contravene a federal statute.”
The federal statute Hinkle refers to is Section 230 of the Communications Decency Act, a rule that gives websites and apps broad discretion over what content they host. Hinkle adds that social networks routinely use editorial judgment to prioritize, remove, label, and otherwise sort content shown to users — and that much of that editorial judgment is likely protected by the First Amendment. “The state claims to be on the side of the First Amendment, but the plaintiffs are not. It could be a good sound bite. However, the assertion contradicts widely held constitutional principles,” Hinkle writes.
Federal lawmakers, like state legislators, are eager to regulate social media. This includes a package of bills aimed at limiting the potential monopoly power of companies like Facebook and Google, as well as several amendments to Section 230. In April, Supreme Court Justice Clarence Thomas argued for the regulation of social media. However, Florida’s law was one of the first and most comprehensive rules governing how companies can moderate web platforms — and it’s not surprising that it was cut short.