By Dara Kam ©2024 The News Service of Florida
TALLAHASSEE — A high-profile legal battle over a Florida law placing restrictions on social media platforms is heating up again after the U.S. Supreme Court returned the case to a Tallahassee-based federal judge for further consideration.
Industry groups NetChoice and the Computer & Communications Industry Association filed a revamped lawsuit this month, as they continue a First Amendment challenge to the 2021 law, which targeted tech behemoths such as X and Meta.
But in a motion to dismiss the amended lawsuit filed Friday, lawyers with Attorney General Ashley Moody’s office argued the groups’ lawsuit “is still riddled with holes.”
“They continue to press their blunderbuss, indiscriminate challenge to Florida’s law, attacking nearly a dozen statutory provisions, both facially and as applied. And rather than even one internet platform joining this action, the platforms … continue to hide behind their trade associations,” the state’s lawyers wrote.
Gov. Ron DeSantis and the Republican-controlled Legislature approved the law after Facebook, which is part of Meta, and Twitter, now known as X, blocked former President Donald Trump from their platforms in the aftermath of Trump supporters storming the U.S. Capitol on Jan. 6, 2021.
The legal fight over the Florida law continues as Trump prepares to return to the White House in January after being elected to a second term on Nov. 5.
The law includes preventing platforms from banning political candidates from their sites and requiring companies to publish — and apply consistently — standards about issues such as restricting users or blocking their content.
U.S. District Judge Robert Hinkle in 2021 issued a preliminary injunction to block the law on First Amendment grounds, and an Atlanta-based appeals court in 2022 upheld most of the judge’s ruling.
But on July 1, the Supreme Court vacated the appeals court ruling and sent the lawsuit back. The Supreme Court did not resolve the constitutional issues but said the Atlanta-based 11th Circuit of Appeals and another appeals court in a similar Texas case did not properly consider the “facial nature” of challenges to the laws, a critical element in deciding whether they met constitutional muster.
In the revamped lawsuit filed Nov. 1, attorneys for the groups argued social-media sites undertake efforts “to keep out potentially harmful, offensive, and unlawful material — including terrorist propaganda, child sexual abuse material, fraudulent schemes, and bullying” to try to keep the internet safe. The amended lawsuit alleged that the law violated platforms’ First Amendment rights to screen messages posted on their sites.
The law applies to social media platforms that have annual gross revenue of over $100 million or more than 100 million monthly active users. Companies could face steep penalties for violating the restrictions. Hinkle has scheduled a July hearing in the case.
The state’s motion to dismiss the revamped lawsuit argued, in part, that the groups lack “standing” to pursue the lawsuit because the constitutionality of the law’s provisions depends on individual circumstances — which the challenge failed to identify.
The motion also alleged that the lawsuit is a “shotgun pleading” that should be dismissed for “failure to state a claim” or, “at a minimum,” be “dismissed to the extent they seek relief beyond Google, Meta, and X.” The motion pointed to the Supreme Court’s July ruling.
‘“(T)he proper facial analysis,’ the court explained, necessitates determining ‘what activities, by what actors,’ Florida’s law regulates, and then examining the nature of each ‘covered platform’ and ‘function,’ assessing whether applying the law to each function ‘intrud(es) on protected editorial discretion,’” the motion said. “That is a fact-intensive inquiry, the court observed, because different platforms and functions ‘involve different levels of editorial choice.’”
The industry groups lack “associational standing” because the law’s constitutionality needs to be scrutinized depending on the individual circumstances of each covered platform, the state’s lawyers argued.
“As the Supreme Court has already explained, whether and how Florida’s law and the First Amendment apply varies platform to platform,” the motion said.
Because the law only applies to platforms that meet certain user or revenue thresholds, “whether a platform is even covered by the law is a fact-specific question,” the state argued.
“And even then, the First Amendment analysis depends on the specifics of each platform’s operations — the analysis differs as to ‘Facebook,’ ‘Gmail,’ ‘Etsy,’ ‘Venmo,’ and ‘Uber.’ … Even within a single platform like Facebook, the analysis varies depending on the platform’s specific ‘services,’ such as ‘News Feed(s),’ ‘events management,’ and ‘marketplaces,’” the motion said.
The litigation also hinges in part on a federal law, known as Section 230 of the Communications Decency Act, which has drawn widespread scrutiny as the breadth and power of online platforms have mushroomed.
In the amended lawsuit filed this month, the tech-industry groups argued that Section 230 “expressly preempts inconsistent state laws that seek to hold online service providers liable for engaging in content moderation covered” by the federal law.
The Florida law “stands as an insurmountable obstacle to the federal policy enacted by Section 230” meant to encourage service providers to “self-regulate the dissemination of offensive material over their services,” the amended lawsuit said.
Stephanie Joyce, senior vice president and chief of staff of the Computer & Communications Industry Association, said her group is “fighting to ensure Florida’s must-carry law is struck down.”
“The government cannot force any speaker, be it a private citizen or a social media website, to say or disseminate speech against their will,” Joyce said in a statement when the revised lawsuit was filed.
But the state’s attorneys argued Friday that the lawsuit is too broad and that the allegations “require a host of factual determinations” about the groups’ members and their platforms.
“Adjudicating plaintiffs’ facial claims will be ‘a daunting, if not impossible, task’ because they implicate ‘a broad swath of varied platforms and functions,’” Moody’s lawyers wrote, referring to an opinion in the case written by Supreme Court Justice Amy Coney Barrett. “The court should not wade into that thicket unnecessarily. Rather than passing on plaintiffs’ overbreadth challenges without first considering an as-applied claim, the proper course is to dismiss the challenges without prejudice, which would allow any of plaintiffs’ members to bring as-applied claims on their own behalf.”
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