Florida’s charge into the field of social media regulation is on hold after a federal judge concluded that the state’s deplatforming law — familiar to readers of this newsletter — likely violates the First Amendment. The decision comes as little surprise; at a June hearing, Judge Robert Hinkle of the U.S. District Court for the Northern District of Florida generously refrained from putting Florida’s attorney “on the spot” by asking if he had “ever dealt with a statute that’s more poorly drafted.”
In brief, the statute (if it ever goes into effect) would limit the ability of large social media platforms to apply their content-moderation rules to candidates and “journalistic enterprises,” to change their rules once adopted, and to sort content about candidates in users’ feeds, among other constraints. The law also imposes detailed reason-giving requirements when a company takes down content, requirements that — the court found — “seem designed not to achieve any governmental interest but to impose the maximum available burden” on covered companies.
None of those burdens would apply to firms if they also own a theme park. (Not kidding.)
In a friend-of-the-court brief, the Reporters Committee and a coalition of First Amendment advocacy groups had urged the court to recognize this case for what it was: the second coming of Miami Herald Publishing Co. v. Tornillo, the 1974 Supreme Court decision that struck down Florida’s “right of reply” statute on the theory that it infringed newspapers’ discretion to arrange their content as they choose.
In substantial part, Judge Hinkle agreed. While not all of a platform’s decisions are akin to a newspaper’s choice of which columns to run, the court reasoned, the ones targeted by the statute — the “ideologically sensitive cases” that Florida lawmakers stressed in the run-up to passage — are. And Tornillo, the court concluded, established that the government’s fuzzy sense that a publisher has too much power in the marketplace of ideas can’t justify overriding its editorial discretion in favor of state standards.
While Judge Hinkle declined to endorse the view that a social media platform “is indistinguishable for First Amendment purposes from a newspaper,” the decision leaves a bit unclear what, in the court’s view, the gap between the rights of traditional and new media is.
We’ll continue tracking the case as it moves forward.
The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Mailyn Fidler.