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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