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As Florida social media law sits in limbo, legal experts say it likely won’t survive

Photo of the U.S. 11th Circuit Court of Appeals in Atlanta.
The U.S. 11th Circuit Court of Appeals in Atlanta.

GAINESVILLE, Fla. – As Florida waits for a federal appeals court decision to see whether it will be allowed to enforce a new law that prevents social media companies from shutting down accounts of political candidates, some top legal experts predict the law is doomed over challenges that it is flatly unconstitutional.

The political fights are likely to continue.

The U.S. Court of Appeals for the 11th Circuit in Atlanta is considering whether to overturn a preliminary injunction a federal trial judge in Tallahassee approved in June that temporarily banned Florida from enforcing the new law. The appeals ruling could come at any time.

Eight Republican-led states, led by Texas, were trying to persuade the appeals court to rule in favor of Gov. Ron DeSantis, who signed the social media law. In court papers, they said small numbers of powerful social media companies have become “gatekeepers” of online content, threatening “the modern public square” of political discourse in America.

Top legal experts scoffed at the argument and said the Florida law’s restrictions on social media companies was clearly unconstitutional. The law was challenged by NetChoice LLC and the Computer & Communications Industry Association, trade associations of technology companies, in the U.S. District Court for the Northern District of Florida.

Even the most conservative of judges on any court would see the clear First Amendment violations, said David Karp of the Carlton Fields law firm in Miami, a prominent First Amendment lawyer and chair of the Florida Bar media and communications law committee.

“Quite honestly, it's not even a close question,” Karp said.

The debate over the law focuses on whether social media platforms perform as common carriers, such as phone companies, which can be regulated by governments. Florida said the law was intended to ban social media companies from censoring others’ content, kicking users off their platforms or manipulating algorithms so fewer people can view certain posts.

The trial judge, Robert Hinkle, cited a 1974 Supreme Court case in the injunction that struck down a Florida law requiring the Miami Herald to publish a candidate’s response to an unfavorable editorial it had printed. Karp, a former newspaper reporter and editor, said similarly requiring social media companies to publish or carry content against their will would be unconstitutional.

“The technology is different, but the legal principle is the same and is as enduring as it was in 1974,” Karp said.

The dean of the Widener Law School in Delaware, Rodney Smolla, also said he expected courts to strike down the Florida law. He said the First Amendment was clear that private outlets have the right to make their own decisions on what to permit or ban from their platforms.

“Under existing First Amendment doctrine, I think the Florida law is doomed,” Smolla said.

Smolla said Congress could address larger social policy issues, such as whether social media outlets should be treated as news outlets. Unlike news organizations, social media companies generally can’t be sued for libel or defamation over content created by users on their platforms.

NetChoice’s vice president and general counsel, Carl Szavbo, said he expects Florida’s law will never take effect and his group will prevail in court. The First Amendment encourages a private business to make decisions whether they will host certain speech or users, he said.

DeSantis, running for reelection next year and widely considered a possible presidential candidate in 2024, signed the new Florida law in May. The governor has routinely complained that social media companies treat political conservatives differently and unfairly.

“If Big Tech censors enforce rules inconsistently, to discriminate in favor of the dominant Silicon Valley ideology, they will now be held accountable,” DeSantis said at the bill’s signing.

The office of Florida Attorney General Ashley Moody declined to comment on the case due to the pending litigation.

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This story was produced by Fresh Take Florida, a news service of the University of Florida College of Journalism and Communications. The reporter can be reached at aaspuru@freshtakeflorida.com.