'Put simply, with minor exceptions, the government can't tell a private person or entity what to say or how to say it...'
Thursday, February 2, 2023
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Court Strikes Down DeSantis Law Intended to Hold Big Tech Accountable

'When platforms choose to remove users or posts, deprioritize content in viewers' feeds or search results ... they engage in First-Amendment-protected activity...'

(Headline USA) A Florida law intended to hold social-media publishers like Facebook and Twitter accountable violates the First Amendment, a federal appeals court ruled Monday.

The ruling deals a major victory to the left-leaning tech companies—who had been accused by Republican Gov. Ron DeSantis, government officials and conservative influencers of mass censorship.

A three-judge panel of the Atlanta-based 11th U.S. Circuit Court of Appeals unanimously concluded that it was overreach for DeSantis and the Florida Legislature to tell the social-media companies how to conduct their work under the Constitution’s free speech guarantee.

“Put simply, with minor exceptions, the government can’t tell a private person or entity what to say or how to say it,” said Circuit Judge Kevin Newsom, an appointee of former President Donald Trump, in the opinion. “We hold that it is substantially likely that social media companies—even the biggest ones—are private actors whose rights the First Amendment protects.”

Newsom also wrote that Facebook, Twitter, TikTok and others are “engaged in constitutionally protected expressive activity when they moderate and curate the content that they disseminate on their platforms.”

The argument made by the judicial panel has come under question with critics arguing that social-media companies have become public utilities more than private companies, and that their own censorship abridges users’ free speech in what is essentially the town square of modern society.

Trump floated the possibility of repealing Section 230 of the Communications Decency Act, through which the federal government extended special protections to tech companies in the early days of the internet to promote their growth while seeking to prevent issues like child-exploitation.

The companies have manipulated the laws away from their intent, however, using them instead as cover to conduct all manner of offenses, including noncompetitive business practices and manipulation of public opinion through their censorship of discourse.

There was no immediate response to emails Monday afternoon from DeSantis’ press secretary or communications director on the ruling. He was the first governor to sign a bill like this into law, although similar ones have been proposed in other states.

One of those, in Texas, was allowed to go into effect by the 5th U.S. Circuit Court of Appeals, and the tech companies involved there are asking for emergency U.S. Supreme Court review on whether to block it. No decision on that was immediately released.

The Computer & Communications Industry Association, a Big Tech advocacy group, claimed the ruling represents victory for Internet users and free speech in general—especially as it relates to potentially offensive content.

If enacted, the law would have given Florida’s attorney general authority to sue companies under the state’s Deceptive and Unfair Trade Practices Act. That law was enacted to “protect consumers and businesses against fraudulent, deceiving, or unfair commercial practices.”

It would also allow individual Floridians to sue social media companies for up to $100,000 if they feel they’ve been treated unfairly.

The bill focused on social media platforms with at least 100 million monthly users, including tech giants Twitter and Facebook.

The law would also require large social media companies to publish standards on how it decides to “censor, deplatform, and shadow ban.”

But the appeals court rejected nearly all of the law’s mandates, save for a few lesser provisions.

“Social media platforms exercise editorial judgment that is inherently expressive,” Newsom wrote for the court. “When platforms choose to remove users or posts, deprioritize content in viewers’ feeds or search results, or sanction breaches of their community standards, they engage in First-Amendment-protected activity.”

Adapted from reporting by the Associated Press.

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