Florida’s Social Networking Censorship Laws Fall to Free Speech Challenge

In a Wednesday ruling, Tallahassee Judge Robert L. Hinkle accepted the plaintiffs’ constitutional and federal statutory arguments a new Florida law improperly restricts social media providers’ right to exercise editorial judgment and curate content that violates platform standards. The preliminary injunction halts enforcement of the three Florida statutes which were scheduled to take effect July 1.

The trade associations NetChoice LLC and Computer & Communications Industry Association pursued the case on behalf of their members, social media providers subject to the legislation at issue. The late May complaint named numerous Florida officials, including the state’s attorney general, as defendants.

In his 31-page opinion, Judge Hinkle held that the state’s efforts to curb social media platforms’ editorial discretion constitute an impermissible viewpoint-based restriction. For example, the law’s “Removing Candidates” provision would prohibit social media platforms from barring political candidates from their sites, despite breaches of content guidelines or other terms of use violations.

The court first determined that the plaintiffs met the three prerequisites qualifying them for preliminary injunctive relief. It then addressed Florida’s argument that “it is on the side of the First Amendment; the plaintiffs are not,” writing that “it is perhaps a nice sound bite. But the assertion is wholly at odds with accepted constitutional principles.”

In determining that the challenged law was subject to the strict scrutiny standard, the court remarked that “the Florida statutes at issue are about as content-based as it gets.” In order to withstand the challenge, a speech restriction “must further a compelling state interest and must be narrowly tailored to achieve that interest,” Judge Hinkle explained.

The court reasoned that the law falls well short of this standard because, among other things, “leveling the playing field — promoting speech on one side of an issue or restricting speech on the other — is not a legitimate state interest.” Judge Hinkle ultimately concluded that the legislation targets social media platforms both too large and too liberal for the legislature’s taste without legal justification.

The trade associations are represented by attorneys with Wilson Sonsini Goodrich & Rosati and DLA Piper, and the Computer & Communications Industry Association is also represented by Stearns Weaver Miller Weissler Alhadeff & Sitterson P.A. 

The Florida Elections Commission defendants and Attorney General Ashley Moody are represented by the Office of the Attorney General of Florida. The other officials are represented by Cooper & Kirk PLLC and the Executive Office of Governor Ron DeSantis.