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Florida prevented from enforcing law targeting certain social media platforms | Saiber SARL


Earlier this year, Florida adopted Senate Bill 7072 – The Stop Social Media Censorship Act – which imposed requirements and prohibitions on some, but not all, social media platforms regarding speech hosted on their websites. The law was scheduled to come into effect on July 1, 2021, but on June 30, 2021, Judge Robert L. Hinkle of the United States District Court for the Northern District of Florida issued a preliminary injunction in NetChoice LLC, et al. vs. Ashley Brooke Moody, et al., who called on various Florida officials to take action to enforce the law because he felt the view-based legislation was preempted by federal law and violated the First Amendment.

The Florida laws at issue, among others, prohibited social media platforms from:

  • Exclude candidates for a position from their sites;
  • Use an algorithm to put the messages of a candidate in the thread of a user who wished to receive it or to exclude the message from the thread of a user who does not wish to receive it;
  • Take measures to “censor, deplatform or ban the shadow” of a “journalistic enterprise” on the basis of the content of its publication or broadcast; and
  • Change their rules of use, conditions and agreements more often than every 30 days

The legislation also required that social media platforms:

  • Allow users who post content to dictate how it is displayed, regardless of how the social media platform or post recipient wishes to receive users’ posts;
  • Publish its standards on how they censor, deform or ban ghost users; and
  • Provide certain other information to users of the platforms.

Finding that the plaintiffs (professional associations whose members included social media providers affected by the legislation) had demonstrated a likelihood of success on the merits to justify entering the preliminary injunction, Hinkle J. first found than 47 USC §230 enables interactive IT service providers, that is to say, social media providers, from moderating their own content and prohibits states from passing laws inconsistent with §230.

Justice Hinkle also ruled that the plaintiffs would likely outweigh their claims that Florida laws violated the First Amendment. First, he felt that the actions of social media providers did not violate the First Amendment. He then ruled that the First Amendment applied to Internet speech “just as it applied to more traditional forms of communication.” The court also found that a precedent established that a private party who creates or uses their editorial judgment to select content for publication cannot be required by the government to also publish other content in the same way. Consequently, the court granted the plaintiffs’ request for a preliminary injunction.

All accused of the NetChoice The case filed a notice of appeal on July 12, 2021. Thus, the United States Court of Appeals for the Eleventh Circuit will have the next word on the constitutionality of Florida’s Stop Social Media Censorship Act in the future.

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