from the and-we're-off dept
On Monday we noted that Florida
Man Governor Ron DeSantis had signed into law the new blatantly unconstitutional social media content moderation bill, complete with its extra corrupt Mickey Mouse exemption for (Disney) companies who own (Disney) theme parks.
Of course, it’s one thing to just note that the bill is unconstitutional and another thing altogether to go through the annoyingly stupid process of proving that the bill is unconstitutional. Now, NetChoice and CCIA have stepped up to the plate and filed the first legal challenge to the bill (as first noted by USA Today who failed to link to the complaint).
The 70 page complaint is pretty impressive to read. The (somewhat long in its own right) Overview highlights the myriad problems in the bill. Here are just the first few paragraphs of the overview, to give you a sense of where the complaint is going.
The Act, a first-of-its-kind statute, was enacted on May 2, 2021 and
signed into law on May 24, 2021 to restrict the First Amendment rights of a targeted
selection of online businesses by having the State of Florida dictate how those
businesses must exercise their editorial judgment over the content hosted on their
privately owned websites. The Act discriminates against and infringes the First
Amendment rights of these targeted companies, which include Plaintiffs? members,
by compelling them to host?and punishing them for taking virtually any action to
remove or make less prominent?even highly objectionable or illegal content, no
matter how much that content may conflict with their terms or policies.
These unprecedented restrictions are a blatant attack on a wide range of
content-moderation choices that these private companies have to make on a daily
basis to protect their services, users, advertisers, and the public at large from a
variety of harmful, offensive, or unlawful material: pornography, terrorist
incitement, false propaganda created and spread by hostile foreign governments,
calls for genocide or race-based violence, disinformation regarding Covid-19
vaccines, fraudulent schemes, egregious violations of personal privacy, counterfeit
goods and other violations of intellectual property rights, bullying and harassment,
conspiracy theories denying the Holocaust or 9/11, and dangerous computer viruses.
Meanwhile, the Act prohibits only these disfavored companies from deciding how
to arrange or prioritize content?core editorial functions protected by the First
Amendment?based on its relevance and interest to their users. And the Act goes
so far as to bar those companies from adding their own commentary to certain
content that they host on their privately owned services?even labeling such
commentary as ?censorship? and subjecting the services to liability simply for
?post[ing] an addendum to any content or material posted by a user.?
Under the Act, these highly burdensome restrictions apply only to a
select group of online businesses, leaving countless other entities that offer similar
services wholly untouched by Florida law?including any otherwise-covered online
service that happens to be owned by The Walt Disney Company (?Disney?) or other
large entities that operate a ?theme park.? This undisguised singling out of
disfavored companies reflects the Act?s true purpose, which its sponsors freely
admitted: to target and punish popular online services for their perceived views and
for certain content-moderation decisions that state officials opposed?in other
words, to retaliate against these companies for exercising their First Amendment
rights of ?editorial discretion over speech and speakers on their property.?
Manhattan Community Access Corp. v. Halleck, 139 S. Ct. 1921, 1931 (2019).
Rather than preventing what it calls ?censorship,? the Act does the
exact opposite: it empowers government officials in Florida to police the protected
editorial judgment of online businesses that the State disfavors and whose perceived
political viewpoints it wishes to punish. This is evident from Governor Ron
DeSantis? own press release that touts the Act as a means to ?tak[e] back the virtual
public square? from ?the leftist media and big corporations,? who supposedly
?discriminate in favor of the dominant Silicon Valley ideology.?2
The Governor?s press release also leaves no doubt about the Legislature?s unconstitutional viewpoint
discrimination: quoting a state legislator, it proclaims that ?our freedom of speech
as conservatives is under attack by the ?big tech? oligarchs in Silicon Valley. But in
Florida, [this] ? will not be tolerated.?
Although the Act uses scare terms such as ?censoring,? ?shadow
banning,? and ?deplatforming? to describe the content choices of the targeted
companies, it is in fact the Act that censors and infringes on the companies? rights
to free speech and expression; the Act that compels them to host speech and speakers
they disagree with; and the Act that engages in unconstitutional speaker-based,
content-based, and viewpoint-based preferences. The legislative record leaves no
doubt that the State of Florida lacks any legitimate interest?much less a compelling
one?in its profound infringement of the targeted companies? fundamental
constitutional rights. To the contrary, the Act was animated by a patently
unconstitutional and political motive to target and retaliate against certain companies
based on the State?s disapproval of how the companies decide what content to
display and make available through their services.
The Act is a frontal assault on the First Amendment and an
extraordinary intervention by the government in the free marketplace of ideas that
would be unthinkable for traditional media, book sellers, lending libraries, or
newsstands. Could Florida require that the Miami Herald publish, or move to the
front page, an op-ed or letter to the editor that the State favored, or demand that the
Herald publish guest editorials in a state-sanctioned sequence? The answer is
obviously no?as the Supreme Court unanimously held five decades ago in Miami
Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). Yet the State now seeks to
repeat that history?and to go even further by, for example, compelling the targeted
companies to alter and disclose their editorial standards and to provide ?detailed?
information about the algorithms they use to curate content.
There’s more, but that gives you the basics right there. My guess is that Florida will challenge the standing of the two groups bringing the complaint, saying that they are not directly harmed by the bill, even if their members are. So the first fight is likely to be over the question of whether or not these trade groups are adequate stand-ins for their members. Hopefully the court recognizes that, but standing questions (as boring as they are) often become a big deal in cases like this one.
The full complaint digs deep to highlight the many, many, many unconstitutional issues with the bill, including some I had missed on my earlier readings. For example, I didn’t realize that the bill creates a new “Antitrust Violator Vendor List” but then makes it so it only can apply to social media companies (that don’t own a theme park).
Section 3 is another example of the Act?s irrational targeting of a select,
disfavored group of online businesses. Although federal antitrust laws?and
Florida?s counterpart statutes?apply across different industries, Section 3
irrationally singles out only the defined ?social media platforms? for disfavored
treatment because of their role in hosting and moderating online content. Id.
Section 3 establishes an ?Antitrust Violator Vendor List? of companies and
individuals subject to an absolute contracting bar with the State of Florida. Id.
(adding ? 287.137(3)(b)). These persons and affiliates are also prohibited from
receiving ?economic incentives? such as ?state grants, cash grants, tax exemptions,
tax refunds, tax credits, state funds, and other state incentives? under Florida law…
The Antitrust Violator Vendor List may include those merely ?accused
of? violations by the Florida ?Attorney General,? ?a state attorney,? or federal
authorities (subject to a cumbersome and inadequate process for contesting the
Attorney General?s decision before a state administrative law judge). The Act
empowers the Florida Attorney General to place an accused company ?temporarily?
on the Antitrust Violator Vendor List upon a finding of mere ?probable cause that a
person has likely violated the underlying antitrust laws.? Id. (adding
? 287.137(3)(d)(1)). The absolute state contracting bar extends to an ill-defined
group of officers, directors, shareholders, and even employees involved in
?management? of a company placed on the List, as well as a broad group of
?affiliates? of companies that are permanently placed on the List.
Given the long list of cases that have established that allowing government officials to punish companies based on their speech is a 1st Amendment violation, this clause alone seems highly suspect. As the complaint later notes:
The Act is a smorgasbord of constitutional violations.
In the end, the main claims are saying that the bill violates both the 1st and 5th Amendment (and by association the 14th Amendment, which is what establishes that state governments are as bound to the Constitution’s limitations as the federal government is). The 5th Amendment claims have to do with due process:
The Act violates due process because it fails to provide fair warning of
what conduct is being regulated. FCC v. Fox Television Stations, Inc., 567 U.S.
239 (2012). A law is unconstitutionally vague when people ?of common intelligence
must necessarily guess at its meaning,? Connally v. Gen. Constr. Co., 269 U.S. 385,
391 (1926), or where the law lacks definite and explicit standards thereby
encouraging ?arbitrary and discriminatory? application, Kolender v. Lawson, 461
U.S. 352 (1983).
There’s also an expected Commerce Clause claim, basically saying that this is an issue that only the federal government can regulate, since it’s regarding interstate commerce. And, finally, a claim that this pre-empted under both the Supremacy Clause and Section 230 itself, which has always been clear that it pre-empts any state attempt at regulating content moderation.
It’s a good, strong complaint, and if these organizations can get over the standing hurdle, it seems to have a strong chance of success. And that’s because of just how blatant the unconstitutional aspects of the bill truly are. Of course, DeSantis and others in the Florida government were warned of all this before, and they now need to throw a ton of taxpayer money at defending their own unconstitutional culture war. And, somewhat ridiculously, many of DeSantis’ biggest fans will simply love the fact that he’s wasting their money this way.