State pushes back on Big Tech’s attempt to block law

OXFORD, UK – AUGUST 22nd 2018: Social media app icons for instagram, facebook, snapchat and twitter on a smartphne screen.

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Posted June 25, 2021 | By Jim Saunders, News Service of Florida

TALLAHASSEE – Accusing social-media platforms of censorship, Florida attorneys late Monday pushed back against an attempt to block a new state law that would put restrictions on companies such as Facebook, Twitter and YouTube.

The state, in a 61-page court filing, argued that U.S. District Judge Robert Hinkle should reject a request by online-industry groups for a preliminary injunction against the law, a top priority of Gov. Ron DeSantis.

The law, which is scheduled to take effect July 1, seeks to prevent large social-media companies from barring political candidates from their platforms and would require companies to publish – and apply consistently – standards about issues such as blocking users.

The industry groups NetChoice and the Computer & Communications Industry Association filed a lawsuit May 27 and are seeking the preliminary injunction, contending that the law would violate First Amendment rights and harm companies’ efforts to moderate content.

But the filing late Monday by the state’s attorneys tried to flip the First Amendment argument, contending that social-media platforms engage in censorship and violate speech rights.

“The public record is replete with instances of their arbitrary and bad faith content moderation. … Moreover, the social media behemoths’ power to silence both on their platforms and throughout society has given rise to a troubling trend where a handful of corporations control a critical chokepoint for the expression of ideas,” attorneys for the state wrote. “Such unprecedented power of censorship is especially concerning today, when most individuals use social media to obtain their news and government officials harness such mediums to reach the public. The act (the new law) seeks to rein in abuse of this power and ensure the widespread dissemination of information from a multiplicity of sources – a governmental objective of the highest order that promotes values central to the First Amendment.”

The document also said the law, passed in April by the Republican-controlled Legislature, furthers “substantial governmental interests.”

“It will protect Floridians from social media platforms’ inconsistent and unfair conduct by requiring those platforms to disseminate detailed content guidelines, apply those guidelines consistently to all users and thoroughly inform users of the nature of their violations of the guidelines,” the state’s attorneys wrote. “The publication of detailed guidelines will also allow Floridians to make an informed decision about whether to become a user of a social media platform. In addition, the act will protect the integrity of elections by prohibiting the platforms from deplatforming, deprioritizing or shadow banning candidates for public office. And together, the act’s provisions will ensure that social media platforms do not unfairly restrict the widespread dissemination of information from a multiplicity of sources.”

Hinkle, who is based in Tallahassee, is scheduled to hold a hearing Monday – three days before the law is slated to take effect – on the request for a preliminary injunction.

In seeking the preliminary injunction, attorneys for the online-industry groups said the law is politically motivated, in addition to violating First Amendment rights. DeSantis made the issue a priority after his ally, former President Donald Trump, was blocked from Facebook and Twitter after Trump supporters stormed the U.S. Capitol on Jan. 6.

“At its core, (the bill) upends the rights of a targeted group of online services to decide what material to display and how that material should be presented,” a legal memorandum filed by attorneys for the groups said. “In other words, the act takes away these private companies’ ability to make editorial judgments — a fundamental component of the ‘freedom of speech’ protected by the First Amendment. Indeed, the act is designed to single out certain online services for special limits on their speech because of the state authorities’ open hostility to their perceived political views and ‘ideology.’ The law is blatantly unconstitutional.”

The groups also contend that the measure violates a federal law that the memorandum said “specifically protects online service providers’ right to engage in ‘private blocking and screening of offensive material’ and expressly prohibits states from adopting conflicting regulations.”

The federal law, known as Section 230 of the Communications Decency Act, has drawn widespread scrutiny as the breadth and power of online platforms have grown.

In the response filed late Monday, attorneys for the state wrote that “a careful reading of Section 230’s text” shows that “Congress has not preempted Florida’s authority to regulate the content moderation decisions of social media platforms.”

The state law targets large technology companies, applying to platforms that have annual gross revenues of more than $100 million or have at least 100 million monthly individual “participants” globally.

Under the law, companies that remove political candidates from platforms could face fines of $250,000 a day for statewide candidates and $25,000 a day for other candidates.

The state is represented in the case by lawyers for DeSantis and Attorney General Ashley Moody and lawyers with the Washington-based firm of Cooper & Kirk, PLLC. The document filed late Monday included a series of examples of social-media platforms blocking content involving politicians – including DeSantis.

“YouTube removed a video of Governor Ron DeSantis holding a panel with pandemic health experts for allegedly violating community standards regarding COVID-19 medical information,” the document said. “YouTube stated that the video included information on mask-wearing that ‘contradicts the consensus of local and global health authorities.’”

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