• by Wendy Davis  @wendyndavis, November 10, 2021

Florida's new social media law, which prohibits large web platforms from “de-platforming” political candidates, represents “a quintessential violation” of the First Amendment, industry groups are telling an appellate court.

“The merits of this case are not close -- Florida may not commandeer private parties’ speech or require them to adopt the state’s preferred editorial choices,” NetChoice and the Computer & Communications Industry Association write in papers filed this week with the 11th Circuit Court of Appeals.

The organizations are urging the 11th Circuit to uphold a trial judge's injunction blocking enforcement of Florida's SB 7072.

That measure, which was slated to take effect July 1, subjects social media companies to fines of $250,000 per day for “deplatforming” candidates for statewide office, and $25,000 per day for other offices. (The bill defines deplatforming as banning a user for more than 14 days, or permanently deleting the users' account.)

Another provision of the law prohibits social media companies from “censoring,” “deplatforming” or “shadow banning” journalistic enterprises, based on content.

The bill exempts companies that own large theme parks in the state -- including Comcast (which owns Universal Orlando) and Disney (owner of Walt Disney World).

Florida lawmakers passed the measure after Republican Governor Ron DeSantis called for a crackdown on supposed “censorship” of conservatives by tech companies -- despite a lack of empirical evidence that tech companies disproportionately suppress right-wing views.

NetChoice and the Computer & Communications Industry Association sued over the law, arguing it unconstitutionally interferes with private companies' editorial decisions. The organizations also said Section 230 of the Communications Decency Act -- which protects websites from liability for content moderation decisions -- overrides the measure.

“By requiring providers to convey speech that they would not otherwise convey and to make editorial judgments they would not otherwise make, the Act intrudes on 'the function of editors,'” NetChoice and the Computer & Communications Industry Association write in papers filed this week with the 11th Circuit Court of Appeals. “That is a quintessential violation of the First Amendment.”

Earlier this year, U.S. District Court Judge Robert Hinkle in Tallahassee blocked the bulk of the law, ruling it probably violated the 1st Amendment.

Florida recently urged the 11th Circuit to lift that block.

Among other arguments, the state contends that the law merely extends the same “common carrier” rules that have long applied to telephone companies to social media platforms.

The industry groups counter in their new papers that social media platforms aren't common carriers, noting that social media companies have never held claimed to offer “indiscriminate” access to their platforms.

“The providers covered by the Act have never been common carriers who must accommodate all comers, no matter how false, inappropriate, unlawful, or off-topic the proposed contribution,” the groups write. “They maintain detailed community and content standards, and they require users to abide by those standards as a condition of access.”