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Federal Judge Halts Florida Law Taking On Big Social Media

Federal Judge Halts Florida Law Taking On Big Social Media

Our prediction when the law was signed still holds true: “This is a dramatic act, but it’s unlikely to survive. You’re still on your own.”

The growing frustration with Big Social Media companies exercising their oligopolistic power to restrict speech by non-liberals, particularly Trump supporters, inspired Florida Governor Ron DeSantis to sign a law giving consumers a right to sue and imposing stiff fines for censoring and banning political candidates.

We covered the details of the law in Florida Governor Ron DeSantis Signs Law Fighting Big Tech Censorship , and noted it was unlikely to survive legal challenge.

And so it has come to pass. Barely a month after becoming law, a federal Judge just issued a preliminary injunction:

The State of Florida has adopted legislation that imposes sweeping requirements on some but not all social-media providers. The legislation applies only to large providers, not otherwise-identical but smaller providers, and explicitly exempts providers under common ownership with any large Florida theme park. The legislation compels providers to host speech that violates their standards—speech they otherwise would not host—and forbids providers from speaking as they otherwise would. The Governor’s signing statement and numerous remarks of legislators show rather clearly that the legislation is viewpoint-based. And parts contravene a federal statute. This order preliminarily enjoins enforcement of the parts of the legislation that are preempted or violate the First Amendment.

Citing a 1974 U.S. Supreme Court case, the court held that the power of Big Tech didn’t change the First Amendment:

… state authority to regulate speech has not increased even if, as Florida argued nearly 50 years ago and is again arguing today, one or a few powerful entities have gained a monopoly in the marketplace of ideas, reducing the means available to candidates or other individuals to communicate on matters of public interest….

the concentration of market power among large social-media providers does not change the governing First Amendment principles. And the argument is also wrong on the facts. 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. To its credit, the State does not assert that the dominance of large providers renders the First Amendment inapplicable

The court held that because the law focused on the content of speech, it was subject to strict scrutiny, and failed the test:

To survive strict scrutiny, an infringement on speech must further a compelling state interest and must be narrowly tailored to achieve that interest. See, e.g., Reed, 576 U.S. at 171. These statutes come nowhere close. Indeed, the State has advanced no argument suggesting the statutes can survive strict scrutiny. They plainly cannot. 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. See, e.g., Arizona Free Enter. Club v. Bennett, 564 U.S. 721, 749-50 (2011). Whatever might be said of any other allegedly compelling state interest, these statutes are not narrowly tailored. Like prior First Amendment restrictions, this is an instance of burning the house to roast a pig. See, e.g., Reno v. ACLU, 521 U.S. at 882; Sable Commc’n of Cal., Inc. v. FCC, 492 U.S. 115, 131 (1989). The plaintiffs are likely to prevail on the merits of their claim that these statutes violate the First Amendment. There is nothing that could be severed and survive.

The Court concluded:

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.

At the end of our initial post about the law, I concluded:

This is a dramatic act, but it’s unlikely to survive. You’re still on your own.

That’s still the case.

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Comments

It seems likely to me that this was a persuasion play on the part of DeSantis. It works even if it fails.

But the baker has to bake the cake?

    caseoftheblues in reply to Exiliado. | June 30, 2021 at 9:38 pm

    Exactly…weird how it ALWAYS just goes one way in our so called courts

    Andy in reply to Exiliado. | June 30, 2021 at 9:44 pm

    that’s colorado and will likely prevail if it hits SCOTUS.

      Olinser in reply to Andy. | June 30, 2021 at 11:46 pm

      Oh, good, he can spend tens of thousands of dollars more of his money and potentially years more of his time to get yet another weasel punt by SCOTUS as they refuse to actually rule on the merits yet again.

      Aarradin in reply to Andy. | July 1, 2021 at 3:51 am

      He has already won at SCOTUS.

      They simply set up another encounter, with an activist targeting him with a request they knew he’d refuse, and sued again.

      This is the third case working its way up the court system.

      The process is the punishment.

      The goal is to ensure no one else dares assert their 1st Amendment Rights. Make sure everyone know they’ll have to spend the rest of their life, and all of their $$, in court.

        Milhouse in reply to Aarradin. | July 1, 2021 at 4:05 pm

        He didn’t win at SCOTUS on the underlying issue. SCOTUS dismissed the first case against him on the grounds that the state commission was suing him for a bad reason. That allows any government entity doesn’t have that bad reason, or any individual even if they do have that reason, to go after him again on the same grounds.

        The second case was dropped. No court ever ruled on it.

        The third case is being brought by an individual, so her motives don’t matter.

    Milhouse in reply to Exiliado. | July 1, 2021 at 12:25 am

    The baker is irrelevant. The whole premise of the case against him is that baking a cake is not speech; his defense is that it is, and I think he’s right, but so far the courts have not addressed it. But everyone agrees that if baking a cake is speech then he wins.

    In this case there’s no question that posts on these sites are speech, and that the restrictions this law imposes are content-based, and thus subject to strict scrutiny.

      JGO_KY in reply to Milhouse. | July 1, 2021 at 12:46 pm

      I thought that baking the cake was not the issue, he will bake the cake. I thought the issue is his refusal to write the words. The coerced words are the issue.

        Milhouse in reply to JGO_KY. | July 1, 2021 at 4:07 pm

        No, it’s about the cake, even with no words. I don’t think they actually asked for any words. He says (and I agree) that the act of designing and baking a custom-made cake for a specific purpose is speech.

          GWB in reply to Milhouse. | July 1, 2021 at 5:31 pm

          They asked for very specific cake design and words on the cakes.

          Milhouse in reply to Milhouse. | July 1, 2021 at 8:53 pm

          No, they didn’t. There are two cases.

          In the gay wedding case, “Craig and Mullins visited Masterpiece, a bakery in Lakewood, Colorado, and requested that Phillips design and create a cake to celebrate their same-sex wedding. Phillips declined, telling them that he does not create wedding cakes for same-sex weddings because of his religious beliefs, but advising Craig and Mullins that he would be happy to make and sell them any other baked goods. Craig and Mullins promptly left Masterpiece without discussing with Phillips any details of their wedding cake.”

          In the “transition” case the client did have a specific design in mind: A pink cake with blue frosting. But she did not ask for any specific words on it.

caseoftheblues | June 30, 2021 at 9:40 pm

Maybe on appeal our brave SC will rule no standing….smh

Desantis is fighting.

This is why people are flocking to Florida and other states that are also fighting.

Hopefully he can use some international influence to get an entire country elsewhere to adopt the law. Lots of countries would LOVE to start picking big tech’s pockets. Fleecing big tech via fines has been a favored past time for the EU for over 2 decades. They could go nuts with this one.

    daniel_ream in reply to Andy. | July 1, 2021 at 12:06 am

    So was Pinochet.

    If you’ve reached the point where you literally, unironically want to see Jack Dorsey and Mark Zuckerberg thrown from helicopters, that’s your right, I suppose. I’m not there yet; I live in a country where the government has decided to destroy free speech on the Internet because it can, and it’s increasingly looking like they’ll get away with it.,

    Giving government unprecedented, Bill-of-Rights-smashing powers because Big Tech took away your Free Shit doesn’t seem like a good approach, especially since we’re getting an object lesson right now in what happens when Your Guy Isn’t In Charge. Florida hasn’t always had Republican governors.

      Milhouse in reply to daniel_ream. | July 1, 2021 at 12:30 am

      PInochet was right. His methods were necessary in the circumstances that beset Chile at the time. And there may one day come a time when someone like him will be necessary here too, but we’re not even close to there yet, and there’s a good chance that we’ll never be. Let’s hope. We certainly shouldn’t be advocating his methods here and now.

      Not sure how you go from fining big tech for censorship and influencing elections (while claiming not to) to tossing execs from helicopters. That’s like equating speed limits in front of schools to summary execution via anti-aircraft gun.

      Wait- I’m exactly sure how you went there; your a leftist with no argument. Just like equating CRT opposition to banishing all civil rights history.

      Ironclaw in reply to daniel_ream. | July 1, 2021 at 6:55 pm

      Big Tech is colluding with the government to censor people the government cannot censor itself.

Wonder if DeSantis can do what Nigeria did? I.e., cut access state-wide to Twitter in response to censoring users? Nigeria cut Twitter off after they censored their president.

https://foreignpolicy.com/2021/06/09/nigeria-twitter-ban-buhari-big-tech/

    daniel_ream in reply to MrE. | June 30, 2021 at 11:56 pm

    As the old saying goes, the Internet interprets censorship as damage and routes around it.

      henrybowman in reply to daniel_ream. | July 1, 2021 at 12:54 am

      It hasn’t in China. Wonder what they know that we don’t.

      Voyager in reply to daniel_ream. | July 1, 2021 at 10:41 am

      FB, Twitter and Google seem to have largely fixed that.

      You talk to anyone not already in the right wing blogo-sphere and they believe 1/6 was an insurection, the election was absolutely legitimate, and anyone who supported Trump is a racist.

      And almost no-one outside of this sphere has any idea that Hunter was deeply involved in corruption, or that he managed to leave a laptop full of records of it at a repair shop.

      Heck, most of the population has no clue the US gov’t is still holding uncharged people in solitary confinement over 1/6 or that the state defenders are compelling them to rec Amy 1st Amendment protected speech as a condition of sentencing.

      So that whole “Internet treats censorship as damage” fails when the majority of its conduit S have been centralized and captured by a unified set of ideologs.

      That’s how China keeps it’s Great Firewall going, and that what FATG is setting up here.

I don’t understand anyone using Twitter or FB anymore

    Milhouse in reply to gonzotx. | July 1, 2021 at 12:32 am

    I created a Twitter account when it first started, before anyone had figured out what it was for, but never used it for much, and closed it when it went over to the dark side during GamerGate.

    I need Facebook for some very limited purposes, so I keep my account there, but I haven’t used its main functions in many years.

    Aarradin in reply to gonzotx. | July 1, 2021 at 3:54 am

    I’m a musician and every group I perform with is run on a Facebook page.

    Getting additional gigs is all about networking, and again – Facebook.

    My livelihood is entirely dependent on it. I have to go on every day.

      2smartforlibs in reply to Aarradin. | July 1, 2021 at 7:09 am

      And what are you going to do when one-day FAKEBOOK inevitably says hey these guys canceled?

      Andy in reply to Aarradin. | July 1, 2021 at 12:10 pm

      Do it every other day instead. Also beef up your other contact methods.

      Facebook, Youtube, et al, will censor singer/songwriters. One of my political parodies (Crash Box – which was about Bernie’s heart attack) had several hundred listens on Youtube, all of which were for just 1 second according to YT analytics. Another of my parodies based on the Johnny Cash tune Folsom Prison Blues was hit with a copyright strike, not for JC’s FSB, but another parody tune. Complaints to YT did nothing – there was no one smart enough or who cared enough to understand that a parody has NO RIGHT to the chords and melody – only the original artist JC did. So the parody tune was off base to hit my parody tune with a copyright violation. It took months to get that handled. In the mean time, it meant throttling for my tune. Ultimately I nuked the YT site and moved to Bitchute. It doesn’t get the traffic, but at least it’s not YT commies.

      I don’t know what a band might do to connect with their fan base other than FB. I don’t recognize the new CDBaby; Soundcloud and Soundclick proved mostly useless. I loved MP3.com but it’s long gone after members gamed the crap out of it to top the charts.

    Voyager in reply to gonzotx. | July 1, 2021 at 11:23 am

    Twitter and Facebook are where the eyes are.

    By abandoning them, you’ve chosen to censor yourself where the people who you must persuade live.

      henrybowman in reply to Voyager. | July 1, 2021 at 11:52 pm

      I’m not interested in persuading pudding-brains. Someone will only persuade them back ten minutes after I log off. The winning strategy is to sideline them — make them irrelevant, and keep them out of my ecosphere..

    The only reason for FB in this household: we bought new PCs and wifey loves her Township game. The only way to transfer her settings, existing games and levels from the old PC to the new was to connect it with a FB account. Minimal information was given to open the account, no one would ever guess the name and it’s locked down as best I could make it.

This video may not seem relevant at first but it will as it gets going. Best video about the China problem I’ve seen in ages.

https://www.youtube.com/watch?v=ykOKnO9R368

“You didn’t build that!”. Isn’t this what is happening in the US? The Chinese corruption is sucking our own culture down their inevitable vortex to destruction. It’s like Nixon once said about China. They aren’t really communist so much as Chinese.

As this video points out, all we are seeing is China repeating its historical mortal character flaw: destroy one corrupt dynasty to replace it with another. Except this time, they could take the entire work down with them. They never learn because China is rotten to the core.

Lacy Hunt’s (best economist in the world in my opinion) latest report walks us through our own economic challenges while inadvertently laying out why we are still the hope for the world. He doesn’t say that or get political but it’s all in the numbers and charts. Pretty dry stuff but it makes it clear what the issues are.

Although we may be the cleanest dirty shirt in the laundry pile, we are still the only strong economy in the world. China isn’t overtaking us. We are destroying ourselves. It’s our choice. Do we still have what it takes to be the greatest country in human history?

https://www.zerohedge.com/markets/lacy-hunt-warns-fed-has-reached-its-limit-sees-inflation-today-deflation-tomorrow

Watch both videos. It always helps to get out of the pedantic arguments long enough to step back and see the forest. Otherwise, we are just spinning our wheels.

Easy fix….no political ads on TV, radio or social media. None.
Candidates must campaign in person.

    Lucifer Morningstar in reply to scooterjay. | July 1, 2021 at 8:49 am

    First Amendment. The politicians would be hollering from the get go that any laws restricting them from campaigning on TV, radio, social media, newspapers etc would violate their First Amendment rights. And I daresay the courts would go along with them.

Judge Hinkie was appointed by Bill Clinton. He became a senior US District Court judge in the lame duck part of Obama’s presidency. He ruled against Florida’s same-sex marriage ban. He also ruled against Florida having convicted felons pay for their legal fees before they regained the right to vote.
Judge Robert Hinkie is Woke! As long as big tech totes water for the Woke crowd, Woke judges will protect big tech. As long as big tech protects Woke Congressmen, Woke judges will protect big tech. As long as big tech protects Woke big pharma, Woke judges will protect big tech.
If only Woke judges would protect the American people!

The States do have the ability to choose the social media platforms to distribute and post public information. Drop FB, Twitter ECT. Choose alternatives.

These alternatives would then benefit by increased users. How many people only use FB to receive content from government? More than you may think.

The VA uses FB, youtube, Twitter and Flickr. Pretty standard for State social media as well. Now imagine that the State decided to abandon those platforms for alternatives.

These alternative platforms would see an increase in users, traffic and subscribers. The current content providers on the platforms and the platforms themselves would benefit from the network effects which are now enjoyed nearly exclusively by the dominant platforms.

There isn’t any reason why the States must use a particular platform. If abandoning the larger platforms is viewed as too disruptive then simply require any platform who wants to gain State patronage to conform to the rules of operation defined by the State.

All platforms would be on an equal footing, free to comply or not. There are all sorts of requirements built into State contract bidding, some with little to no nexus with the performance parameters of the base project.

IMO, it wouldn’t be plowing new ground to apply this logic to social media platforms wishing to gain or continue State patronage.

    GWB in reply to CommoChief. | July 1, 2021 at 5:38 pm

    Kind of like when the gov’t decided to standardize all their computers on Microsoft Office products. It was a lifesaver for M$, and a killer to every other product in existence who were competing with them (despite many of them were standardized to work with those document formats).

I would have thought fair elections are a compelling state interest.

    Milhouse in reply to Danny. | July 1, 2021 at 10:07 pm

    They are. And restrictions narrowly tailored to achieve that interest are allowed. But the interest and the threat to it must be well defined, not something vague like “fairness”.

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