Readers may recall Florida Senate Bill 7202 regulating social media platforms that was passed by the legislator and signed by Governor Ron DeSantis about a year ago. The stated intention of the legislation is to combat social media censorship. This bill had a slate of provisions including:
Prohibiting deplatforming of political candidatesProhibiting censorship of posts about political candidatesProhibiting the removal of posts by “journalistic enterprises” based on contentRequiring consistent application of censorship, deplatforming, and shadow banningOnly allowing changes to terms of service once every 30 daysUsers may opt out of curated content feeds and platforms allow users who opt out to receive material in sequential orderDisclosure obligations: users must be provided with view counts, published standards for deplatforming, detailed explanations for a deplatformed user, political candidates receiving free advertising must be informed of in-kind contributionsUsers who are deplatformed must be given at least 60 days to access their data
Tech companies challenged the law and the US Court of Appeals for the Eleventh Circuit recently issued an opinion that most provisions of the law are likely unconstitutional.
Upon reading the opinion they issued, I have a number of observations.
Property Rights Play Almost No Role in the Court’s Decision.
For those who think it’s none of the government’s business what private companies do with their private property, it should be emphasized that this is not how the court reasons. Rather, the legal arguments have to do with the First Amendment as a positive right, rather than owners’ property rights.
Let’s look at the cases cited in the state of Florida’s argument about why SB 7202 is consistent with precedent and First Amendment jurisprudence. The first is PruneYard Shopping Center v. Robins (1980), in which the owner of a shopping mall challenged the state forcing him to allow members of the public to circulate pamphlets and petitions on his property.
The US Supreme Court affirmed the state court’s decision that the mall owner’s speech rights were not threatened by the petitioners because they didn’t prevent him from speaking. Also apparently relevant is the fact that the owner did not object to the content of the pamphlets. The reason this is relevant is because the argument of the social media companies regarding SB 7202 is that they object to the content of the users they censor and thus being forced to allow them to speak would violate the First Amendment protections of social media companies (which the 11th Circuit accepts).
Apparently the state of the law is that it’s perfectly fine for the state to force you to host speech on your (finite) physical property as long as you don’t specifically object to the content of it because your own speech is not inhibited, but the state cannot force you to allow the speech of users on your social media platform if you object to their speech, because that undermines your speech.
Courts Can Work backwards from Any Conclusion They Choose.
The second case the state of Florida cited was Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (2006), in which law schools challenged the requirement that they allow military recruiters on campus, arguing that this violated their free speech rights (they wanted to bar recruiters from campus to protest “Don’t Ask, Don’t Tell” policies). In this case, the US Supreme Court decided that law schools being forced to host recruiters didn’t violate their free speech rights because it “neither limit[ed] what law schools may say nor require[d] them to say anything.” (I am unsure how being forced to allow Alex Jones on Facebook limits what Facebook may say or requires it to say anything.)
Hosting military recruiters did “not affect the law schools’ speech,” the Court said, “because the schools [were] not speaking when they host[ed] interviews and recruiting receptions.” In fact, recruiting activities aren’t “inherently expressive” – they aren’t speech! (I’m sure the court would feel the same way about a group like the Proud Boys using Twitter to recruit new members.)
So what’s different between Rumsfeld and the SB 7202? The 11th Circuit argues that a social media platform that “exercises editorial discretion in the selection and presentation of” the content that it disseminates to its users “engages in speech activity,” whereas a law school wanting to express its disagreement with the military isn’t “in the business of disseminating curated collections of speech.” I guess charging tens of thousands of dollars to attend lectures about the law isn’t a business of disseminating curated collections of speech?
Bizarrely, the 11th Circuit also argues the fact that social media platforms clearly target certain people and ideas is itself “expressive,” thereby implying that if platforms instead applied their policies evenhandedly, their banning people wouldn’t be so clearly expressive. Thus, discrimination based on political ideology is rewarded. As we saw in the PruneYard case, it would have probably gone better for the mall owner had he explicitly disagreed with the content of the pamphlets and petitions forced upon him.
Invoking “Governmental Interests” Means Judges Decide Whatever They Want.
SB 7202 attempts to keep social media companies from unduly influencing elections by censoring or shadow banning political candidates and journalists. Since it’s a First Amendment case, which SCOTUS in its wisdom decided is a “fundamental right,” strict scrutiny is triggered, meaning that the state must prove a compelling, substantial interest in order to abridge that right. The 11th Circuit states, “Put simply, there’s no legitimate—let alone substantial—governmental interest in leveling the expressive playing field.”
This is quite interesting, if one considers a famous case involving election finance and political speech, Citizens United v. Federal Election Commission (2010), Justice Stevens argued that corporations are not members of society and that there are compelling governmental interests to curb corporations’ ability to spend money during elections. So, basically, there’s a compelling government interest when they want it and there’s not when they don’t.
The Court Did Not Consider the Entire Law Unconstitutional.
Notably, the Eleventh Circuit considered most of the disclosure requirements of the law to likely be constitutional. Below is a chart summarizing the court’s opinion on individual provisions within the law:
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The disclosure provisions can be important, as they create explicit expectations about a platform’s responsibility to a user. While use of most social media platforms is “free,” the actual exchange is a user’s data for use of the platform. I think the law would treat censorship and shadow banning quite differently if users paid cash in exchange for use of the platform, as this would create consideration and therefore a contract between the user and social media company. The latter censoring users in such an arbitrary fashion would, as such, be considered a possible breach of contract.
For another approach, see Jeff Deist on a tort law approach to social media regulation.
What’s Next?
Texas passed an anticensorship bill that is being litigated in the 5th Circuit Court of Appeals. Given courts’ inconsistencies, strange body of decisions, and ability to make things up, who knows what will happen?
