TALLAHASSEE (CBSMiami / NSF) – A federal judge appeared skeptical Monday about a new Florida law aimed at punishing social media companies that remove users from their platforms or report user content.
Online industry groups NetChoice and the Computer & Communications Industry Association this month filed a lawsuit challenging the law, pushed by Governor Ron DeSantis after Twitter and Facebook blocked former President Donald Trump from their platforms after his supporters went on a rampage in the U.S. capital on January. 6.
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Arguing that the law would violate the First Amendment rights of social media companies and undermine their efforts to moderate content, industry groups have called on U.S. District Judge Robert Hinkle to prevent the law from coming into effect. Thursday as expected.
Hinkle dotted lawyers with questions and swept the law aside in a two-and-a-half-hour hearing on Monday.
“I’m not going to embarrass you and ask you if you’ve ever dealt with a law that has been more poorly drafted,” the judge asked the lawyers representing the DeSantis administration.
The controversial law aims to stop major social media platforms from banning political candidates from their sites and to force companies to publish – and consistently enforce – standards on issues such as user bans or blocking their content.
The new law “is a radical attack on the fundamental rights of the First Amendment” private companies “whose business revolves around hosting and presenting speeches,” Brian Willen, an attorney who represents the plaintiffs, told Hinkle at the hearing.
“Every day, these companies are called upon to make complex and often subjective value judgments about the content they want to host and how they want to present that content to the world. The law directly removes protected editorial discourse… and subjects it to draconian penalties, ”Willen argued. “This allows the state to investigate and punish private companies whenever it thinks their editorial discourse is unfair or inconsistent when measured against a nebulous standard.”
But Brian Barnes, an attorney with Cooper & Kirk PLLC who represents the state, said the First Amendment’s word protections did not apply to social media behemoths.
He pointed to a United States Supreme Court ruling in a case known as Rumsfeld v. Forum for Academic and Institutional Rights that Barnes said “definitely refutes this categorical First Amendment right to engage, they call it editorial judgment but I guess I would characterize it as silencing particular voices that the First Amendment still protects.”
Social media platforms do not enjoy the same First Amendment rights as news posts, Barnes argued.
“The question the court needs to focus on is not whether these social media platforms are engaging in something that resembles the editorial judgment of a newspaper. The question is whether they produce a vocal product of their own, separate and distinct, ”he told Hinkle. “I think newspaper and newspaper publishing are fundamentally different from the type of conduct that is regulated by social media platforms.”
But Willen said the state lacks the power to dictate the decisions of private companies about user content.
“These are not cases where there are clear, right and wrong answers. And that is exactly why the First Amendment reserves these judgments for private parties, not the government. The state simply cannot be the arbiter of the consistency, accuracy, fairness of private editorial judgments. The power that Florida now seeks is patently unconstitutional, ”he said.
State law targets large corporations, applying to platforms that have gross annual revenues of more than $ 100 million or have at least 100 million individual monthly “participants” around the world, such as Twitter, Facebook and YouTube.
By law, companies that remove political candidates from platforms face fines of $ 250,000 per day for statewide candidates and $ 25,000 per day for other candidates.
Plaintiffs attorney Peter Karanjia urged Hinkle to block the law, arguing it would wreak havoc on businesses and users if allowed to go into effect this week.
“Compliance is not just the flick of a switch. You need a lot of time to do it, ”Karanjia said.
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The law imposes “extraordinary burdens of justifications and restraining decisions,” Karanjia argued, adding, “This does not happen by magic.”
DeSantis, a political ally of Trump, has boasted that Florida’s “pioneer” law, approved by the Republican-controlled Florida legislature this spring, will prevent “awakened” Silicon Valley executives and their employees from ” remove ideas that are either inconvenient to the story or with which they personally disagree.
But Hinkle dug loopholes in the law on Monday.
“It just seems to me that you can only make sense of this law if you know what the legislature must have meant, not what it said. And I think that’s a tough argument in Florida, where the court says, just read the words, ”the judge said.
For example, Hinkle asked Barnes about part of the law that says companies can’t use “post-prioritization” to place candidate posts “before, below, or in a more or less important position than others. in a news feed,, view, or in search results.
“We read this language to essentially dictate a chronological presentation,” Barnes told Hinkle.
“And I know that because it makes sense, even if it’s not what the law says,” Hinkle retorted.
Hinkle also questioned the practicality of the law.
“What the state of Florida apparently believes is that we’ll just have a completely different internet or social media in Florida than anywhere else. They will have to provide a different platform in Florida, ”he said.
But Barnes said the platforms “already provide or comply with state-specific regulations.”
Hinkle has not rendered a decision on the plaintiffs’ preliminary injunction request, but said he expects to release a decision before Thursday.
The judge also asked about part of the law that creates an exemption for theme parks that meet certain criteria.
“There is nothing on file that indicates that an entity that operates a theme park has a social media platform like the kind that we’re really focusing on,” Barnes said. The theme park provision is “severable” from the rest of the act, meaning Hinkle could repeal that provision while keeping the other parts of the act intact.
“You have an equal protection problem,” Hinkle said. “How do you know if the correct answer is to remove the exception or to remove the rest of the law?” You have to make it equal somehow.
Lawmakers “had to know, had to know that this was a major constitutional issue,” the judge added.
“And yet, even in the face of this major constitutional question, they did not vote to subject Disney, Universal and ABC to this law. And you want me to deduce that they would be prepared to subject Disney and Universal Studios to this law, even if no one voted to do so, ”he said.
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