A federal court on Thursday night blocked Florida’s effort to force internet platforms to host political candidates and media entities online speech, ruling that the law violated the First Amendment and a key federal law that protects users’ speech. We had expected the court to do so.
The Florida law, S.B. 7072, prohibited large online intermediaries—save for those that also happened to own a theme park in the state—from terminating politicians’ accounts or taking steps to de-prioritize their posts, regardless of whether it would have otherwise violated the sites’ own content policies. The law also prevented services from moderating posts by anyone who qualified as “journalistic enterprise” under the statute, which was so broadly defined as to include popular YouTube and Twitch streamers.
EFF and Protect Democracy filed a friend-of-the-court brief in the case, NetChoice v. Moody, arguing that although online services frequently make mistakes in moderating users’ content, disproportionately harming marginalized voices, the Florida statute violated the First Amendment rights of platforms and other internet users. Our brief pointed out that the law would only have “exacerbate[ed] existing power disparities between certain speakers and average internet users, while also creating speaker-based distinctions that are anathema to the First Amendment.”
In granting a preliminary injunction barring Florida officials from enforcing the law, the court agreed with several arguments EFF made in its brief. As EFF argued, the “law itself is internally inconsistent in that it requires ‘consistent’ treatment of all users, yet by its own terms sets out two categories of users for inconsistent special treatment.”
The court agreed, writing that the law “requires a social media platform to apply its standards in a consistent manner, but . . . this requirement is itself inconsistent with other provisions.”
The court also found that the law intruded upon online services’ First Amendment rights to set their own content moderation policies, largely because it mandated differential treatment of the content of certain online speakers, such as political candidates, over others. These provisions made the law “about as content-based as it gets,” the court wrote.
Because the law amounted to a content- and viewpoint-based restriction on speech, Florida was required to show that it had a compelling interest in the restrictions and that it doesn’t burden any more or less speech than is necessary to advance that interest.
The court ruled the Florida law failed that test. “First, leveling the playing field—promoting speech on one side of an issue or restricting speech on the other—is not a legitimate state interest,” the court wrote.
Further, the law’s speech restrictions and burdens swept far beyond addressing concerns about online services silencing certain voices, as the court wrote that the law amounted to “an instance of burning the house to roast the pig.”
As EFF wrote in its brief, inconsistent and opaque content moderation by large online media services is a legitimate problem that leads to online censorship of too much important speech. But coercive measures like S.B. 7072 are not the answer to this problem:
The decisions by social media platforms to cancel accounts and deprioritize posts may well be scrutinized in the court of public opinion. But these actions, as well as the other moderation techniques barred by S.B. 7072, are constitutionally protected by binding Supreme Court precedent, and the state cannot prohibit, proscribe, or punish them any more that states can mandate editorial decisions for news media.
EFF is pleased that the court has temporarily prohibited Florida from enforcing S.B. 7072 and we look forward to the court issuing a final ruling striking the law down. We would like to thank our local counsel, Christopher B. Hopkins, at McDonald Hopkins LLC for his help in filing our brief.
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