ORLANDO, Fla. — A federal appeals court ruled Monday it is unconstitutional for Florida to prohibit social media companies from permanently banning political candidates, dealing a blow to Gov. Ron DeSantis’ push to combat what he declares to be online censorship.
A three-judge panel of the 11th U.S. Circuit Court of Appeals upheld an injunction blocking key parts of Florida’s social media law pushed by the governor, writing that meddling with the platforms’ content-moderation policies ran afoul of the First Amendment.
“We conclude that social-media platforms’ content-moderation activities — permitting, removing, prioritizing, and deprioritizing users and posts — constitute ‘speech’ within the meaning of the First Amendment,” Judge Kevin Newsom wrote in the unanimous 67-page opinion.
Two tech trade associations — NetChoice LLC and the Computer & Communications Industry Association — challenged the law approved last year. The groups praised the court’s ruling and said it will bolster their chances in another case involving a similar Texas law pending before the U.S. Supreme Court.
“The First Amendment protects platforms and their right to moderate content as they see fit — and the government can’t force them to host content they don’t want,” said Carl Szabo, vice president and general counsel of NetChoice.
Matt Schruers, president of the Computer & Communications Industry Association, added, “This ruling means platforms cannot be forced by the government to disseminate vile, abusive and extremist content under penalty of law. This is good news for internet users, the First Amendment and free speech in a democracy.”
DeSantis and other Republican leaders argued social media companies were biased toward conservatives and were censoring political speech. The removal of former President Donald Trump from Twitter and other social media platforms sparked outrage from DeSantis and others.
DeSantis’ office did not provide an immediate response Monday to the ruling, which upheld a similar decision by a federal district judge in June. When signing the tech bill, DeSantis accused social media companies of using “secret algorithms and shadow banning to shape debates and control the flow of information.”
Trump was banned from Twitter two days after the Jan. 6 riot at the U.S. Capitol. The company said it was “due to the risk of further incitement of violence.”
Content-moderation decisions are “protected exercises of editorial judgment,” Newsom wrote for the appeals court.
“Put simply, with minor exceptions, the government can’t tell a private person or entity what to say or how to say it,” wrote Newsom, who was appointed by Trump.
The legislation signed by DeSantis in May 2021 prohibited social media companies from “deplatforming” political candidates, prioritizing or deprioritizing messages pertaining to candidates, and removing anything posted by a “journalistic enterprise” based on its content.
Social media companies could have faced fines up to $250,000 a day for banning a candidate for more than 14 days.
While the court blocked those major provisions, it allowed some regulations to stand, such as a requirement users be able to access their data up to 60 days after they are banned. Companies must also disclose the standards they use to moderate content and inform users of changes.
Earlier this month, the 5th Circuit Court of Appeals allowed Texas to enforce a similar law targeting Big Tech. Trade groups representing social media companies have asked the U.S. Supreme Court to block that law.
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