Florida Tells Court: Actually, It's Section 230 That's Unconstitutional (Not Our Social Media Law)
from the florida-man-does-florida-man-things dept
As you'll recall, Florida's social media bill was declared unconstitutional by a federal judge a couple weeks ago. The state has already moved to appeal that decision, so we'll have to see how the judges on the 11th Circuit feel about all of this. However, apparently the case in the lower court is still moving forward in some way (I had assumed that after the preliminary injunction and appeal that the case would be stayed until the appeal was decided, but apparently not? Understanding civil procedure is an impossibility).
Earlier today Florida filed its response to the lawsuit, which is... not much. It's basically this sentence over and over again:
This paragraph contains legal conclusions that do not require a response. Defendants deny any remaining allegations in this paragraph.
I count 142 such statements (roughly). When you get down to the defenses, they toss out a bunch, but the one that caught my attention is their sixth defense:
Insofar as 47 U.S.C. § 230 would render all or any portion of the Act unconstitutional, 47 U.S.C. § 230 is invalid and in violation of the First Amendment, the Tenth Amendment, and the principle of federalism.
The issue here is that while the law has been put on hold for violating the 1st Amendment, one of the other arguments is that even if it were constitutional (which it is not), it would be pre-empted by Section 230. We've discussed this in the past. Section 230 makes it clear that states cannot contravene federal law regarding moderation and if they do they're pre-empted. So, to counter that, Florida is now doing a "it's not our law that's unconstitutional, it's actually Section 230 that's unconstitutional!"
I guess we can add this to Donald Trump's recent Florida lawsuit that is also challenging the constitutionality of Section 230.
I doubt this particular challenge to Section 230 will end up getting very far, but it does seem notable as a case involving a state government arguing that Section 230 is, itself, unconstitutional under the 1st Amendment, 10th Amendment, and federalism. Of course, as the social media bill itself has shown, Florida does not exactly have a good track record for understanding what is, and what is not, a violation of the 1st Amendment. But, of course, when you have clueless Supreme Court Justices asking for cases challenging the constitutionality of Section 230, eventually we were going to get to this point.
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Filed Under: 1st amendment, content moderatin, federalism, florida, pre-emption, section 230, social media
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Is it just me, or is that a steaming pile of stupid? It seems to be rejecting the argument "CDA 230 makes this unconstitutional" ... except CDA neither attempts to interpret the constitution, nor has the authority to do so. It sounds kind of like Florida doesn't even know what arguments are against it, and is just spitting terms out.
*For CDA 230 to be a source of "constitutionality" it would either need to be an amendment, somehow get it's authority from a source that supperceeds the constitution (I will leave it to peoples imaginations if such a source exists or what it could be)
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Re:
Section 230 does potentially attempt to violate states rights, in violation of the 10th Amendment. Federal law is normally only empowered to affect interstate commerce. Unless tech companies begin reclassifying social media posts as financial transactions, simply engaging in far reaching speech is not something within of the scope of congressional enumeration. To be sure, FL will have the deck stacked against it, thanks to disastrous decisions like the Darby case that considers practically anything that anyone does in any place as having a vague effect on commerce somehow.
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…fucking what
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Re: Re:
Regulation of interstate telecommunications networks and their users is classic interstate commerce regulation because it deals with the apparatus through which much commerce is done.
Also the Constitution gives Congress a wealth of powers aside from regulating interstate commerce. Take a read through Art. I, Sec. 8 sometime.
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Re: Re:
To be sure, FL will have the deck stacked against it, thanks to disastrous decisions like the Darby case that considers practically anything that anyone does in any place as having a vague effect on commerce somehow.
Yeah, if only states could compete with each other by making their minimum wages lower...fucking social media companies were even scheming back in the 40's to fuck with you guys.
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Re: Re:
I think you're confusing the definitions of "commerce" and "finance". Finance and financial transactions are only one kind of commerce. Trading goods directly for good, services for services, or goods for services that don't involve money changing hands are all still commerce. As we read Techdirt and post messages for others to see we are shown ads. This is an exchange, it is commerce. We have traded our attention and our thoughts to Techdirt for its content and platform for speech. This commerce is by its very design intended to cross state and even national border. It is at its heart quintessentially interstate commerce.
This power is limited by the 1st amendment:
CDA 230 doesn't actually dictate what a site can or can't host or moderate, only that a sites moderation or lack of moderation is not an action that can be brought in court. It doesn't abridging speech, it simply enforces two simple rules, that the liability for speech not removed from a site lies with the person that created that speech, not the host, and that when a host exercises their own speech rights by removing content the original speaker, or another speaker, can't sue them for that action.
It does not limit speech it limits what court actions can be taken in response to specific types of speech.
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Re: Re:
Amendment 1
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
Wanna try that again, Sparky?
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Re: Re:
Contrary to your delusions, the First Amendment is Federal law, so the Supremacy Clause renders any "states rights" moot.
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Re: Re: Re:
That's conflating two issues- if the Florida statute is invalid due to preemption by the CDA or due to the First Amendment. Those are independent questions.
The supremacy clause would mean that § 230 (if valid) preempts any conflicting portions of the Florida statute. If, as Florida might argue, § 230 is unconstitutional (or otherwise invalid), then it obviously can't preempt the Florida statute.
Separate from § 230 preemption is whether the Florida statute violates the First Amendment. The First Amendment directly applies to the States through incorporation of the bill of rights against the States (see https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights) not the supremacy clause.
Even if § 230 were invalid, the Florida statute would still have to conform to the First Amendment, for which there is no States rights issue- long established SCOTUS rulings indicate that the First Amendment applies directly to the States.
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Re: Re:
To be sure, FL will have the deck stacked against it, thanks to disastrous decisions like anything involving the First Amendment.
Fixed that for you bro, no charge.
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Re: Re:
"Section 230 does potentially attempt to violate states rights, in violation of the 10th Amendment..."
Koby, Koby, Koby...First it was 1A being violated. Then a slew of obscure, long-overturned precedent. Now it's article 10.
I have some news for you; if you need to keep changing your reasons as to why section 230 is wrong then that is a very clear indicator that what is wrong isn't section 230. You're just an asshole persistently looking for a way to shoehorn rhetoric into providing you the end result you want.
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A thought occurs.
Let’s say 230 was ruled to be unconstitutional. Wouldn’t that mean we’d all have to deal with a patchwork of state laws that govern moderation? That seems like a good enough reason alone to keep 230 intact.
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Re: A thought occurs.
While it would suck for a while, pull the Google playbook out.
Give them exactly what they demand.
Then blackhole every state with stupid laws like this.
Y'all would be shocked, just shocked, how much they would cry about how it is unfair to them.
They did the whole sites going black and slowing them down to make a point about net neutrality, I think a lovely banner saying
'Sorry a proposed law in your state means you will no longer have access to this site and most other social media platforms.'
Then list the facts of what this law is actually about & a running total of how much taxpayer money has been wasted on a law that is unconstitutional.
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Re: A thought occurs.
sits and pouts
Because of spammy mcspammerson my very good comment is in the mod queue...
pouts
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Re: A thought occurs.
“Patchwork of state laws”
That depends. Considering how many republicans like to use words that are outright Terrorism in language and nature these days you could use that as a bargaining chip against them even if it’s dirty.
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Ah, the compelling and strong maneuver in Legal Defense that every lawyer is aware of: “No U.”
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To be fair, “preschool playground” is the approximate level of education for the average Florida lawyer.
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They can't all be bad I mean Steele screwed up enough that made him promise to not even pretend to be a lawyer on TV in the state.
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Re: Re:
Which isn't a bad idea as a punishment considering the Giuliani has continued appearing on Faux News for legal news commentary despite his suspension from the bar.
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Telling choice there
Having a lawyer who screwed up so badly that the bar was willing to even consider bringing the hammer down give legal commentary is like having a known arsonist and pickpocket as a commenter on respecting the property of others.
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Re:
Hey, don't go knocking playground law. It's an important and dynamic field.
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Re:
Says the expert who carefully observes that this effort is led by
COOPER & KIRK , PLLC
1523 New Hampshire Ave., NW
Washington, DC 20036
(202) 220-9600
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Even if 230 was found to be unconstitutional, wouldn't this law still violate 1A? Getting rid of 230 wouldn't get rid of the fact that private businesses can STILL decide what they do and don't want on their platform.
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Nuking 230 would get rid of a roadblock that keeps shitheads from filing frivolous lawsuits. Sure, such suits could be squashed on 1A grounds. But how many companies would take that chance?
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How many companies can afford the lawyer time to defend thousands of suites spread through every state? The cost of winning against an organised attack would cripple most companies.
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Yup, that's why a good while back TD had an article pointing out that those trying to gut 230 ultimately don't have a problem with that law so much as they have a problem with the first amendment.
All 230 really does is short-circuit lawsuits relating to website owners/moderators exercising their first amendment rights, gut 230 and they can still moderate it'll just be riskier.
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Re: Re:
Facebook would probably face the choice of not moderating and losing users, or moderating and losing money, or shutting down while they have money in hand.
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Considering that most big tech companies are now taking orders from the federal government on what speech to ban, the Florida law would be seen as protecting speech, not abridging speech. Tech companies cannot claim that their speech is being violated when they also consider the posted speech to be owned by their user base.
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Re: Re:
Considering that most big tech companies are now taking orders from the federal government on what speech to ban
Koby, no they're not.
You need to stop getting your news from garbage ignorant websites. The federal government pointing out "this is disinfo" into a process websites have set up to report disinfo is not "taking orders on what speech to ban."
Don't be an idiot.
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Re: Re: Re:
Don't be an idiot.
I don't think he can help it. He is an idiot.
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Re: Re: Re: Re:
It's like looking in a toilet and asking a turd not to be a turd.
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Re: Re: Re:
It sounds like you heard the White House official press briefing yesterday. So it doesn't matter if I cite MSN or Yahoo News, they still said they were doing it. Free speech advocates don't like the idea of the government directing companies on which people to censor.
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What was said during the White House press briefing that gave you the impression that the federal government is ordering social media sites to remove speech? Be specific.
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Re:
Stone, per your usual Tourette’s spasm of ‘be specific’, here you go:
“We're flagging problematic posts for Facebook that spread disinformation.” - Psaki
That is a direct, unaltered Psaki quote. That is specific. That ‘we’ is the Harris/Biden administration.
So….this isn’t working out quite the way you envisioned in your “yes, I nailed Koby” homosexual fantasies, eh?
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Re: Re: Re: Re:
It sounds like you heard the White House official press briefing yesterday.
At no point during the White House press briefing did they say they were ordering websites to ban speech.
The only ones reporting that are nonsense garbage websites, who took the comment out of context, lied about it, and distorted what was said. Coincidentally, those are the same garbage propaganda sites that always seem to have the same idiot talking points you spew here.
Koby: let's be frank, you're a duped fool.
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Can’t I be Radar instead?
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Oh that Burns.
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That's a real Klinger. I heard it all the way over here.
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Re: Re: Re:
Stop mashing the puns together like that. It's painful.
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Re: Re: Re: Re: Re:
“We're flagging problematic posts for Facebook that spread disinformation.” - Psaki
Masnick, go ahead with your obfuscatory “well, yeah, that is what she said … but, errr, I know better than the spokeswoman for the most powerful politician on Earth that what she, uhhh, meant was….”
So when Psaki said “WE” are “FLAGGING” posts “FOR” Big Tech…. tell us, what did she mean?
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She meant “we’re flagging posts for Facebook to look at that we believe contain disinformation about the pandemic”. You have no proof that the federal government is ordering Facebook to delete such posts. You have no proof that the federal government is threatening Facebook into deleting such posts. Until you have such proof, your whiny-ass rambling is meaningless.
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Re:
I asked Masnick, but I guess his favorite porn-obsessed mouthpiece will do.
So, Stone, you understand when Circle-Back Psaki says ‘we’, she means the federal government, yes?
And when she says ‘disinformation’ she means concepts and ideas the feds consider dangerous, right? And ‘flag’ means telling Big Tech ‘this information is dangerous for the public to read’, right?
And when she says ‘for Facebook’ she means, well, ‘FOR FACEBOOK’, right?
I mean, you do see that big, difficult, esoteric word ‘FOR’ in there, right?
So again, the federal government is flagging information it doesn’t want the public to be aware of FOR Facebook.
I’m trying to help you and your Daddy Masnick with reading comprehension, since he claimed the exact opposite of the above factual sentence.
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Two things.
That “right?” gimmick will not work on me.
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Re: Re: Re: Re:
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Re: Re: Re: Re:
"It sounds like you heard the White House official press briefing yesterday."
You mean government saying; "We heard there was a rumor saying this. This is not correct. Here's our version of events!"?
This is Baghdad Bob-level pathetic, Koby. Since when does a white house press briefing constitute orders?
Your anti-230 argument has been scraping the bottom of the barrel too long when all you've got in your hand is an implication that government speaking is censorship.
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Re: Re: Re: Re: Re:
“We're flagging problematic posts for Facebook that spread disinformation.” - Psaki
WE are FLAGGING problematic (read: true) posts FOR FACEBOOK…
Yeah, really confusing language there. I wonder what she meant by those uncommon, archaic words like ‘we’ and ‘for’….
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Re: Re: Re: Re: Re: Re:
Nice of you to admit you're illiterate, but we knew that already.
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Re: Re: Re: Re: Re: Re:
"Yeah, really confusing language there. I wonder what she meant by those uncommon, archaic words like ‘we’ and ‘for’…."
As in, she issued a bog-standard PSA?
Yep, you really need to be illiterate to interpret that as anything other than what governments do as part of their normal job.
I'm not too surprised to see you hollering about censorship over a god damn fact check.
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Please stop reading InfoWars, Koby.
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I like how the gov't flagging misinformation has become the gov't giving orders to social media on what speech to ban.
Umm, the ultimate decision is still with the social media company. Nowhere is it stated that the gov't will bring a force of action if social media doesn't take posts down.
But in your world, it's not OK of the gov't to flag posts as misinformation, but it is OK for the gov't to tell you exactly what posts you must keep up.
How can you keep all these conflicting ideas straight in your head?
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Re: Re:
I don't see how that's possible. Republicans say too much is being removed, and Democrats say not enough is being removed. How then can companies "take orders" if there aren't clear orders to be taken?
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Re: Re:
Hey Koby!
They're still wondering what your opinion is on some other posts.
https://www.techdirt.com/articles/20210714/17442347172/wisconsin-senators-social-media-bill-a ims-to-save-first-amendment-violating-first-amendment.shtml#c8
Why are you scared to reply?
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Re: Re:
Tech companies cannot claim that their speech is being violated when they also consider the posted speech to be owned by their user base.
I seem to remember you & I having a talk on another post about equivocating social media with paper...how funny that when I pointed out that you don't own the 'paper' you went all silent.
Wassamatter Bud? Does your level of stupidity preclude you from answering?
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Re: Re:
Koby is not a person, Koby is an algorithm designed to ship of thesius any event to fit his narrative. Its right out of the alt-right playbook.
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Hey now, don’t insult the meat popsicle that way.
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Re: Re: Re: Ship of Theseus
Those ЖЯдZЧ ЯЦЅЅІдЍЅ at Garage 54 are always testing that theory, https://www.youtube.com/watch?v=f7mSgiEw8Es
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Re: Re: Re:
"Koby is an algorithm designed to ship of thesius any event to fit his narrative."
Wrong metaphor. In that example Koby would be replacing the boards of the ship with runny feces rather than planking. His arguments only make sense once you assume that freedom doesn't exist, free speech doesn't exist, or private property doesn't exist.
He isn't rebuilding the ship of theseus. He's rolling a wooden horse up to the gates.
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Re: Re: Re:
Jamie, who the hell is ‘thesius’? Even your pedophile minister of propaganda Ian Danskin knows it’s Theseus. At least be smart enough to parrot the spelling of the anti-White pseudo-intellectuals you take your marching orders from.
Try copying Masnick’s talking points word-for-word the way room, thatothergay, nasch, scarydevilmonastat, stone, et al do. At least he learned how to spell in Hebrew school.
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Re: Re:
[Hlucinates facts not in reality]
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Re: Re: LOL! Gov't giving tech orders
I have a question; was your lobotomy painful?
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Re: Re:
And Facebook's response, basically, shove it:
Source: https://twitter.com/PeterAlexander/status/1416141177196322818
So, please Koby, tell us again how big tech is taking orders from the gov't to ban speech...
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Re: Re: Re:
“We're flagging problematic posts for Facebook that spread disinformation.” - Psaki
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Re: Re:
"Considering that most big tech companies are now taking orders from the federal government on what speech to ban,'
Prove it. We will all wait.
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Re: Re: Re:
“We're flagging problematic posts for Facebook that spread disinformation.” - Psaki
I know she’s way out of her depth, but think Circle-Back Psaki is a liar?
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'I know you are but what am I?', truly a timeless legal argument
'The law that protect the first amendment by making it clear that making use of it isn't grounds for a lawsuit is the real unconstitutional law!'
I see florida has skipped right past table and facts and are busy pounding on the table, I'd say that was quick but with such a laughably bad law/PR stunt it's not like they had any other options but lies and bluster to defend it.
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Re: 'I know you are but what am I?', truly a timeless legal argu
T,ftfy
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In the immortal words of Pepper Brooks: It's a bold strategy, Cotton. Let's see if it pays off for 'em.
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Old Lawyer Adage
When the facts are with you, pound on the facts
When the law is with you, pound on the law
When neither are with you, pound on table.
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I'm more surprised they haven't gotten to the "Ya, it's unconstitutional, so fucking what, what are you going to do about it?" phase yet.
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Well, the feds haven’t said it in those exact words, but they’re getting as close to it as they can… White House spokeschick said they are flagging info they don’t want the public to know for Facebook. So it probably won’t be long now…
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They can flag posts all they want. Facebook isn’t obligated to do anything, and the government can’t legally make Facebook do anything, about those posts.
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Re: Re:
"White House spokeschick said they are flagging info they don’t want the public to know for Facebook."
Only american alt-right fuckwits would take a PSA as a threat to their freedoms and rights.
Meanwhile I note FB isn't really required to do jack shit.
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Ceensorship, bigotry, misogyny, racist election interference -- Why is it that it's exclusively Republicans that always lie about the nature of Republican laws?
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Fucking what?
Last time I checked, I thought §230 was the only constitutional part of the CDA, according to the SCOTUS decision Reno v. ACLU.
I would ask how the state of Florida is this fucking stupid, but, well, you know…
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Re: Fucking what?
Well, not quite. That part of the law wasn't thrown out but it wasn't reviewed...
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Re: Re: Fucking what?
Ah. Thank you! My mistake.
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Didn't the supreme court already rule on section 230?
Section 230 is the only surviving part of the Communications Decency Act of 1995. Didn't the Supreme Court already decide section 230 was constitutional when they struck down the rest of the act, but specifically left this one part alone.
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Our appeal will succeed. It is based on a popular meme.
Your Honor, I Reject Your Reality and Substitute My Own
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It all comes down to the newspaper model
You could write To The Editor, but they might not publish you, so if you had enough money you could pay for an ad or quarter/half/full page to run your views, thus performing an end run around "censoring conservatives" in the opinion pages.
Because social media doesn't have a newspaper interface, you are not forced to wade through all the ads to get to the bits you are interested in, nor are you forced to read everyone's opinion. But this new-fangled model sucks for "conservatives", thus they have to legislate for buggy-whip entangled social media.
It's not fair. If people aren't reading newspapers anymore, then social media should be forced to have the same interface.
Margaret, where are my smelling salts?
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Governor Florida Man at it again
More idiocy from DeSantis the Florida Man. In other news, water is wet.
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Time for a you tube music video
Biden : Trump : Two sides of a gold coin.
Both perform for their people. Republicans were for limited gov'ment intrusion. Democrats have to have a federal solution to anything. That is why Biden is grandstanding on it's Trumps fault
Media is just setting a stage, all op-ed videos are an act - waste time and money (taxpayer) on this stuff is making me think of term limits Capital Hill.
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Re: Time for a you tube music video
Perhaps you were not paying attention. The government of Florida has three branches (executive, legislative, judicial), all of which are controlled by one party. That party, which has set the stage for the government to intrude into website operators' decisions, is the Republican party.
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Wow. Anonymous now makes you a coward. This just proves that our country is headed for socialism with the democrats in charge. Hope all of the dem sheep remember how it got started. YOUR so called president just left hundreds of Americans in Afghanistan. Just remember that they have no problem leaving you behind either!!
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