By Jim Saunders ©2024 The News Service of Florida
TALLAHASSEE — A battle about a 2021 Florida law that placed restrictions on social media platforms will get a more detailed look from a federal district judge.
Pointing to a U.S. Supreme Court decision, the 11th U.S. Circuit Court of Appeals on Friday sent the case back to U.S. District Judge Robert Hinkle, who in 2021 issued a preliminary injunction to block the law on First Amendment grounds. The Atlanta-based appeals court in 2022 upheld most of Hinkle’s decision.
But on July 1, the Supreme Court vacated the appeals court ruling and sent the lawsuit back for further consideration. The Supreme Court did not resolve the constitutional issues but said the 11th Circuit 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.
“To make that judgment, a court must determine a law’s full set of applications, evaluate which are constitutional and which are not, and compare the one to the other. Neither court performed that necessary inquiry,” Justice Elena Kagan wrote in the main opinion.
In a two-paragraph order Friday, the 11th Circuit said it was sending back the Florida case “in full to the district court for further proceedings consistent with the Supreme Court’s opinion.” It did not give additional explanation, but social media industry groups quickly requested a conference before Hinkle and argued that the 2021 injunction should remain in effect as the case continues.
As of Monday morning, the state and Hinkle had not responded to the request, according to a court docket.
Gov. Ron DeSantis and the Republican-controlled Legislature approved the law after Facebook and Twitter, now known as X, blocked former President Donald Trump from their platforms after Trump supporters stormed the U.S. Capitol on Jan. 6, 2021.
The law, for example, prevented platforms from banning political candidates from their sites and required companies to publish — and apply consistently — standards about issues such as banning users or blocking their content. The law applied 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.
The industry groups NetChoice and the Computer & Communications Industry Association challenged the constitutionality of the law. After the rulings by Hinkle and the 11th Circuit, Florida went to the Supreme Court.
Though the Supreme Court did not rule on the First Amendment issue as it sent the Florida and Texas cases back for closer looks, justices addressed speech issues.
The Florida and Texas cases “present a complex clash between two novel state laws and the alleged First Amendment rights of several of the largest social media platforms,” Justice Ketanji Brown Jackson wrote in an opinion that concurred in part with the main opinion.
“Some things are already clear. Not every potential action taken by a social media company will qualify as expression protected under the First Amendment. But not every hypothesized regulation of such a company’s operations will necessarily be able to withstand the force of the First Amendment’s protection either. Beyond those broadest of statements, it is difficult to say much more at this time,” she wrote.
After the Supreme Court ruling, the industry groups filed a motion arguing that briefs should be filed at the 11th Circuit “so that the parties can address the import of the Supreme Court’s decision, whether this (appeals) court can resolve the facial challenge on this record or whether a remand to the district court is necessary, and if so, whether the preliminary injunction should remain in effect pending any necessary further proceedings.”
But state lawyers in Florida Attorney General Ashley Moody’s office and with the firm Cooper & Kirk PLLC filed a response that contended the case should go back to district court. It said the state has “been enjoined from enforcing SB 7072 in its entirety for three years despite no showing in the district court that NetChoice is likely to succeed on its facial challenge, as that standard is properly applied.”
The response said the record in the case is “not adequate to assess the merits of NetChoice’s request for an injunction.”
The state’s lawyers wrote, for example, that a court needs to determine which platforms would be subject to the restrictions, based on the revenue and user thresholds included in the law. Also, they said determinations about potential First Amendment violations would require findings about “different levels of editorial choice” involved in each platform’s various functions.
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