State urges judge to reject tech industry suit

TALLAHASSEE — Accusing social-media platforms of
censorship, Florida attorneys late Monday pushed back against an attempt to
block a new state law that would put restrictions on companies such as
Facebook, Twitter and YouTube.

The state, in a 61-page court filing, argued that U.S.
District Judge Robert Hinkle should reject a request by online-industry groups
for a preliminary injunction against the law, a top priority of Gov. Ron
DeSantis.

The law, which is scheduled to take effect July 1, seeks to
prevent large social-media companies from barring political candidates from
their platforms and would require companies to publish — and apply
consistently — standards about issues such as blocking users.

The industry groups NetChoice and the Computer &
Communications Industry Association filed a lawsuit May 27 and are seeking the
preliminary injunction, contending that the law would violate First Amendment
rights and harm companies’ efforts to moderate content.

But the filing late Monday by the state’s attorneys tried to
flip the First Amendment argument, contending that social-media platforms
engage in censorship and violate speech rights.

“The public record is replete with instances of their
arbitrary and bad faith content moderation. … Moreover, the social media
behemoths’ power to silence both on their platforms and throughout society has
given rise to a troubling trend where a handful of corporations control a
critical chokepoint for the expression of ideas,” attorneys for the state
wrote.

“Such unprecedented power of censorship is especially
concerning today, when most individuals use social media to obtain their news
and government officials harness such mediums to reach the public. The act (the
new law) seeks to rein in abuse of this power and ensure the widespread
dissemination of information from a multiplicity of sources — a governmental
objective of the highest order that promotes values central to the First
Amendment.”

The document also said the law, passed in April by the
Republican-controlled Legislature, furthers “substantial governmental
interests.”

“It will protect Floridians from social media platforms’
inconsistent and unfair conduct by requiring those platforms to disseminate
detailed content guidelines, apply those guidelines consistently to all users
and thoroughly inform users of the nature of their violations of the
guidelines,” the state’s attorneys wrote.

“The publication of detailed guidelines will also allow
Floridians to make an informed decision about whether to become a user of a
social media platform. In addition, the act will protect the integrity of
elections by prohibiting the platforms from deplatforming, deprioritizing or
shadow banning candidates for public office. And together, the act’s provisions
will ensure that social media platforms do not unfairly restrict the widespread
dissemination of information from a multiplicity of sources.”

Hinkle, who is based in Tallahassee, is scheduled to hold a
hearing Monday — three days before the law is slated to take effect — on
the request for a preliminary injunction.

In seeking the preliminary injunction, attorneys for the
online-industry groups said the law is politically motivated, in addition to
violating First Amendment rights. DeSantis made the issue a priority after his
ally, former President Donald Trump, was blocked from Facebook and Twitter
after Trump supporters stormed the U.S. Capitol on Jan. 6.

“At its core, (the bill) upends the rights of a targeted
group of online services to decide what material to display and how that
material should be presented,” a legal memorandum filed by attorneys for the
groups said. “In other words, the act takes away these private companies’
ability to make editorial judgments — a fundamental component of the ‘freedom
of speech’ protected by the First Amendment. Indeed, the act is designed to
single out certain online services for special limits on their speech because
of the state authorities’ open hostility to their perceived political views and
‘ideology.’ The law is blatantly unconstitutional.”

The groups also contend that the measure violates a federal
law that the memorandum said “specifically protects online service providers’
right to engage in ‘private blocking and screening of offensive material’ and
expressly prohibits states from adopting conflicting regulations.” 

The federal law, known as Section 230 of the Communications
Decency Act, has drawn widespread scrutiny as the breadth and power of online
platforms have grown.

In the response filed late Monday, attorneys for the state
wrote that “a careful reading of Section 230’s text” shows that “Congress has
not preempted Florida’s authority to regulate the content moderation decisions
of social media platforms.”

The state law targets large technology companies, applying
to platforms that have annual gross revenues of more than $100 million or have
at least 100 million monthly individual “participants” globally.

Under the law, companies that remove political candidates
from platforms could face fines of $250,000 a day for statewide candidates and
$25,000 a day for other candidates.

The state is represented in the case by lawyers for DeSantis
and Attorney General Ashley Moody and lawyers with the Washington-based firm of
Cooper & Kirk, PLLC. The document filed late Monday included a series of
examples of social-media platforms blocking content involving politicians —
including DeSantis.

“YouTube removed a video of Governor Ron DeSantis holding a
panel with pandemic health experts for allegedly violating community standards
regarding COVID-19 medical information,” the document said. “YouTube stated
that the video included information on mask-wearing that ‘contradicts the
consensus of local and global health authorities.’”