Florida Social Media Law Crashes Into First Amendment (Free Version)

Florida Social Media Law Crashes Into First Amendment (Free Version)
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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.”

And, here are developments and articles from last month. Being subscribed would mean getting these in a more timely fashion.

Other Developments

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The United States (U.S.) and 60 other nations launched the “Declaration for the Future of the Internet,” which “represents a political commitment among Declaration partners to advance a positive vision for the Internet and digital technologies.”

The Australian Competition and Consumer Commission (ACCC) issued its “fourth report in its Digital Platform Services Inquiry examined whether online marketplaces are promoting fair and competitive markets for consumers and sellers” and stated that “[c]oncerns include the use of algorithms to decide how products are ranked and displayed (including some marketplaces giving preference to their own products), the collection and use of consumer data, inadequate dispute resolution processes and a need for more consumer protections.”

The Court of Justice for the European Union (CJEU) ruled against Meta/Facebook in finding that the “the General Data Protection Regulation (GDPR) does not preclude national legislation which allows a consumer protection association to bring legal proceedings, in the absence of a mandate conferred on it for that purpose and independently of the infringement of specific rights of the data subjects, against the person allegedly responsible for an infringement of the laws protecting personal data, on the basis of the infringement of the prohibition of unfair commercial practices, a breach of a consumer protection law or the prohibition of the use of invalid general terms and conditions, where the data processing concerned is liable to affect the rights that identified or identifiable natural persons derive from that regulation” per the court’s summary.

The United States (u.S.) Cybersecurity and Infrastructure Security Agency (CISA) and the Federal Bureau of Investigation (FBI) “have updated joint Cybersecurity Advisory AA22-057A: Destructive Malware Targeting Organizations in Ukraine, originally released February 26, 2022…to include additional indicators of compromise for WhisperGate and technical details for HermeticWiper, IsaacWiper, HermeticWizard, and CaddyWiper destructive malware.”

The California Public Utilities Commission penalized “T-Mobile USA in the amount of $5,325,000.00” because the company “falsely represented that there would be a three-year customer migration period (2020-2023) for all former Sprint Communications Company L.P. (Sprint) customers (i.e., both the former Sprint customers who would become T-Mobile customers on the new T-Mobile 5G network; and the customers of the former Sprint subsidiary, Boost Mobile, who would become customers on the new DISH Network).”

United States (U.S.) House Energy and Commerce Committee Ranking Member Cathy McMorris Rodgers (R-WA), Communications and Technology Subcommittee Ranking Member Robert Latta (R-OH), Senate Commerce, Science, and Transportation Committee Roger Wicker Ranking Member (R-MS) and Communications, Media, and Broadband Ranking Member Subcommittee John Thune (R-SD) wrote Assistant Secretary of Commerce for Communications and Information and National Telecommunications and Information Administration (NTIA) Alan Davidson “outlining their priorities for implementation of the NTIA’s Infrastructure and Jobs Act (IIJA) broadband programs."

The Europol Innovation Lab “published its first report under its Observatory function, entitled “Facing Reality? Law enforcement and the challenge of deepfakes” and found that “[a]dvances in artificial intelligence and the public availability of large image and video databases mean that the volume and quality of deepfake content is increasing, which is facilitating the proliferation of crimes that harness deepfake technology.”

The National Telecommunications and Information Administration’s (NTIA) Institute for Telecommunication Sciences (ITS) “in collaboration with the Department of Defense (DOD), announced 5G Challenge contestants selected from Early-Bird entries…[a] prize competition [that] aims to accelerate the adoption of open interfaces, interoperable components, and multi-vendor solutions toward the development of an open 5G ecosystem” per the agency’s press release.

The National Telecommunications and Information Administration (NTIA) submitted an “information collection request to the Office of Management and Budget (OMB) for emergency review and approval in accordance with the Paperwork Reduction Act of 1995” “to ensure that the agency can meet the statutory deadlines Congress set forth for the Infrastructure Act Broadband Grant Programs” by making the “process more equitable for all of its potential applicants for the broadband grant programs enacted in the Infrastructure Act, including those with limited resources and/or technical expertise.”

The California Public Utilities Commission (CPUC) “adopted rules for a new $2 billion grant program focused on building broadband Internet infrastructure for communities without access to Internet service at sufficient and reliable speeds” according to the CPUC’s press statement.

The United States (U.S.) National Institute of Standards and Technology’s (NIST) National Cybersecurity Center of Excellence (NCCoE) released “three related publications on trusted cloud and hardware-enabled security.”

The Joint Chiefs of Global Tax Enforcement (known as the J5), “comprised of Australian Taxation Office (ATO), the Canada Revenue Agency (CRA), the Fiscale Inlichtingen- en Opsporingsdienst (FIOD), HM Revenue & Customs (HMRC), and Internal Revenue Service Criminal Investigation (IRS-CI),” “announced the release of an intelligence bulletin today, warning banks, law enforcement personnel and private citizens of some of the dangers when dealing with Non-fungible Tokens (NFTs).”

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Further Reading

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Alphabet’s profit drops 8% as Google’s pandemic boom shows signs of slowing.” By Daisuke Wakabayashi — New York Times

Microsoft reports rising revenue and profits, despite war and inflation.” By Karen Weise — New York Times

Amazon posts loss as online sales falter” — BBC

Apple reports positive results despite shortages and economic fallout” — Associated Press

Activision Blizzard shareholders greenlight Microsoft sale, but FTC showdown looms” By Nick Statt — Protocol

Twitter miscounted its daily users for three years straight” By Jacob Kastrenakes — The Verge

How to use Apple’s new repair program” By Rebecca Heilweil — recode

Private equity executive sought to undermine NSO critics, data suggests” By Stephanie Kirchgaessner and Harry Davies — The Guardian

Leftist gimmick accounts want their tweets to influence politics, too” By Mia Sato — The Verge

A chilling Russian cyber aim in Ukraine: Digital dossiers” — Associated Press

Auto-renewing subscriptions are irritating. Some states are cracking down.” By Veronica Irwin — Protocol

Elon Musk’s Twitter takeover gives him a new type of power” By David Ingram — NBC News

Google will let you request fewer ads about weight loss and dating” By Mitchell Clark — The Verge

NIST Official: Revised Cybersecurity Supply-Chain Guidance Imminent” By Mariam Baksh — Nextgov

Meta is using AI to push people to watch more Reels” — and it's working” By Sarah Roach — Protocol