Florida’s governor Desantis, a likely Republican presidential candidate in 2024, and his Republican dominated legislature passed a bill this year designed to punish the likes of Twitter and Facebook.
Unless they were very naive, they knew this law was going to be challenged in court, and likely struck down for a number of reasons.
But that probably was not the reason for this legislative circus. Much more likely, it was to show certain voters that Desantis had similar ideas to ex-president Trump and would, similar to Trump, attempt to shut down social media platforms that he disagreed with. He certainly got that attention.
While a federal Judge blocked Florida’s SB 7072, this will likely get appealed to the 11th circuit and from there to the Supremes if they are willing to take it.
The court’s conclusion was this:
The legislation now at issue was an effort to rein in social-media providers deemed too large and too liberal. Balancing the exchange of ideas among private speakers is not a legitimate governmental interest. And even aside from the actual motivation for this legislation, it is plainly content-based and subject to strict scrutiny. It is also subject to strict scrutiny because it discriminates on its face among otherwise-identical speakers: between social-media providers that do or do not meet the legislation’s size requirements and are or are not under common ownership with a theme park. The legislation does not survive strict scrutiny. Parts also are expressly preempted by federal law.
The state attempted to use the First Amendment, which only applies to the government, as a reason to apply this law to certain, specific, large, more liberal, social media companies only. The judge didn’t buy it.
the State has asserted it is on the side of the First Amendment; the plaintiffs are not. It is perhaps a nice sound bite. But the assertion is wholly at odds with accepted constitutional principles….
The judge also said that even if the state thinks that these large companies are operating in a monopolistic fashion, it doesn’t give the state the right to trample on the first amendment.
Whatever might be said of the largest providers’ monopolistic conduct, the internet provides a greater opportunity for individuals to publish their views—and for candidates to communicate directly with voters—than existed before the internet arrived
The judge also said that the purpose of the law was overturn the media companies’ editorial judgements themselves, which this judge says is unconstitutional.
the targets of the statutes at issue are the editorial judgments themselves. The State’s announced purpose of balancing the discussion—reining in the ideology of the large social-media providers—is precisely the kind of state action held unconstitutional in Tornillo, Hurley, and PG&E.
The judge goes on to continue to blast the law, but stay tuned for the appeal. Get some popcorn, because this is definitely not over. Credit: Professor Eric Goldman, Santa Clara University School of Law