Florida Social Media Law Crashes Into First Amendment

A U.S. appeals court upheld a lower court’s ruling that blocked Florida’s social media law from taking effect and found the state’s rationale for legislating and the law itself lacking.

The United States Court of Appeals for the Eleventh Circuit upheld a U.S. district court’s injunction of Florida’s S.B. 7072, legislation “to combat the “biased silencing” of “our freedom of speech as conservatives . . . by the ‘big tech’ oligarchs in Silicon Valley” according to Florida Governor Ron DeSantis. The state will almost certainly appeal to the Supreme Court of the United States to have the injunction removed.

First, let’s look at SB 7072. Next, we’ll delve into relevant First Amendment law. Finally, we’ll look at the Eleventh Circuit’s decision.

In 2021, the Republicans that control the Florida government pushed through a bill that would bar large social media platforms from deplatforming political candidates and would prohibit them from moderating or editing content.  This May 2021 press release from Governor Ron DeSantis’ (R) office provides a sufficient sampling of the rhetoric and viewpoints that drove Republicans to pass SB 7072. DeSantis variously compares the social media companies to the oppressive, left-wing regimes in Havana and Caracas and claimed that “the Silicon Valley elites” are trampling the rights of “real Floridians.” Lieutenant Governor Jeanette Nuñez asserted:

What we’ve been seeing across the U.S. is an effort to silence, intimidate, and wipe out dissenting voices by the leftist media and big corporations. Today, by signing SB 7072 into law, Florida is taking back the virtual public square as a place where information and ideas can flow freely.

Florida Republicans are utilizing the same rhetoric and unproven arguments their counterparts in Washington have been using: social media companies are biased against conservative speech and censor or “shadow-ban” it. Moreover, DeSantis has eyes on the White House in 2024 and is seeking favor with Trump voters by taking up the fight against Twitter’s permanent ban of the former President and Facebook’s two-year ban.

Against this backdrop, we can turn to the legislation. First, in the findings section, we find the seeds of the novel Republican arguments that social media platforms as the 21st Century town square or common carriers, two designations with legal significance that might support overriding the First Amendment rights of social media platforms. The legislature asserted “[s]ocial media platforms have transformed into the new public town square… have become as important for conveying public opinion as public utilities are for supporting modern society…[and] hold a unique place in preserving first amendment protections for all Floridians and should be treated similarly to common carriers.”