Texas Legislature Sees Florida's Social Media Bill Go Down In Unconstitutional Flames; Decides 'We Can Do That Too!'

from the seriously,-guys? dept

The Republican grievance culture wars about the internet are never ending. The Grand Old Party -- which once presented itself as believing in private property rights, keeping government out of business, and mocking "snowflakes" for playing victim all the time -- has shown its true colors as being for everything it previously insisted it was against. As we noted earlier this year, a bunch of states with Republican controlled legislatures and governors have been proposing blatantly unconstitutional bills to try to prevent social media companies from moderating disinformation and propaganda. Utah was the first state to pass such a bill, but Governor Spencer Cox wisely vetoed it, noting the Constitutional concerns.

Next out of the gate was Florida, where Governor Ron DeSantis chose poorly, signing the bill that was thrown out last week for being blatantly unconstitutional under basically any standard of review. As we've noted, this is all performative nonsense, playing to a base that wants to insist it's the aggrieved victims, because sometimes when they violate a website's policies, they face consequences.

Incredibly, though not surprisingly, Texas legislators have looked at Florida's giant constitutional mess of wasted taxpayer funds and said, "yeah, let's do that!" Earlier this year, Texas proposed another awful social media content moderation bill, but the legislative session ended without it being voted on. Rather than move on to dealing with actual problems, Texas launched a special legislative session with a long list of culture war grievances -- including the social media bill.

And so the bill has be re-introduced and it's arguably even more blatantly unconstitutional than the Florida bill. Most of the first part of the bill is just creating a ton of silly and wasteful compliance paperwork -- requiring social media websites to do a lot more to actually moderate content on their site, including having someone people can call, having an official appeals process, and explaining to people in exact terms why they were moderated (this gambit is a favorite of trolls and assholes, who want this information solely to disingenuously insist that they didn't break the rules, or to insist that others who broke similar rules were treated differently, usually by removing any and all context from those decisions).

But then the bill veers into even more ridiculous territory. First, it defines "censorship" to mean things that are clearly not censorship. Even if you disagree with the basic premise that moderation is not censorship, the Texas bill defines "censorship" so broadly to make the term meaningless:

"Censor" means to block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.

De-monetizing is censorship? De-boosting is censorship? In what world? I mean, Fox News refuses to put me on the air to express my views about their propaganda. Is that censorship? The bill does exempt news organizations, but still. Under this bill, it seems that search ranking is censorship. After all, whoever is ranked below the top spot has been "de-boosted" and not provided "equal access or visibility." I can't wait until I can sue Google for not putting Techdirt at the top of every search!

The bill then tries to prohibit its definition of "censorship" for viewpoints.

CENSORSHIP PROHIBITED. (a) A social media platform may not censor a user, a user ’s expression, or a user ’s ability to receive the expression of another person based on:

(1) the viewpoint of the user or another person;
(2) the viewpoint represented in the user’s expression or another person’s expression; or
(3) a user’s geographic location in this state or any part of this state.

So, you cannot ban Nazis any more. Or bigots spewing hatred. Sounds great, Texas. I mean... actually, sounds totally blatantly unconstitutional, and a clear waste of Texas taxpayers money, as you will have to go to Court and defend this law that will easily be tossed out as unconstitutional. But, who cares about that when there's a culture war to fight, and an opportunity to whine about how you're the victim again?

Filed Under: 1st amendment, censorship, content moderation, florida, section 230, texas, transparency

It Can Always Get Dumber: Trump Sues Facebook, Twitter & YouTube, Claiming His Own Government Violated The Constitution

from the wanna-try-that-again? dept

Yes, it can always get dumber. The news broke last night that Donald Trump was planning to sue the CEOs of Facebook and Twitter for his "deplatforming." This morning we found out that they were going to be class action lawsuits on behalf of Trump and other users who were removed, and now that they're announced we find out that he's actually suing Facebook & Mark Zuckerberg, Twitter & Jack Dorsey, and YouTube & Sundar Pichai. I expected the lawsuits to be performative nonsense, but these are... well... these are more performative and more nonsensical than even I expected.

These lawsuits are so dumb, and so bad, that there seems to be a decent likelihood Trump himself will be on the hook for the companies' legal bills before this is all over.

The underlying claims in all three lawsuits are the same. Count one is that these companies removing Trump and others from their platforms violates the 1st Amendment. I mean, I know we've heard crackpots push this theory (without any success), but this is the former President of the United States arguing that private companies violated HIS 1st Amendment rights by conspiring with the government HE LED AT THE TIME to deplatform him. I cannot stress how absolutely laughably stupid this is. The 1st Amendment, as anyone who has taken a civics class should know, restricts the government from suppressing speech. It does not prevent private companies from doing so.

The arguments here are so convoluted. To avoid the fact that he ran the government at the time, he tries to blame the Biden transition team in the Facebook and Twitter lawsuits (in the YouTube one he tries to blame the Biden White House).

Pursuant to Section 230, Defendants are encouraged and immunized by Congress to censor constitutionally protected speech on the Internet, including by and among its approximately three (3) billion Users that are citizens of the United States.

Using its authority under Section 230 together and in concert with other social media companies, the Defendants regulate the content of speech over a vast swath of the Internet.

Defendants are vulnerable to and react to coercive pressure from the federal government to regulate specific speech.

In censoring the specific speech at issue in this lawsuit and deplatforming Plaintiff, Defendants were acting in concert with federal officials, including officials at the CDC and the Biden transition team.

As such, Defendants’ censorship activities amount to state action.

Defendants’ censoring the Plaintiff’s Facebook account, as well as those Putative Class Members, violates the First Amendment to the United States Constitution because it eliminates the Plaintiffs and Class Member’s participation in a public forum and the right to communicate to others their content and point of view.

Defendants’ censoring of the Plaintiff and Putative Class Members from their Facebook accounts violates the First Amendment because it imposes viewpoint and contentbased restrictions on the Plaintiffs’ and Putative Class Members’ access to information, views, and content otherwise available to the general public.

Defendants’ censoring of the Plaintiff and Putative Class Members violates the First Amendment because it imposes a prior restraint on free speech and has a chilling effect on social media Users and non-Users alike.

Defendants’ blocking of the Individual and Class Plaintiffs from their Facebook accounts violates the First Amendment because it imposes a viewpoint and content-based restriction on the Plaintiff and Putative Class Members’ ability to petition the government for redress of grievances.

Defendants’ censorship of the Plaintiff and Putative Class Members from their Facebook accounts violates the First Amendment because it imposes a viewpoint and contentbased restriction on their ability to speak and the public’s right to hear and respond.

Defendants’ blocking the Plaintiff and Putative Class Members from their Facebook accounts violates their First Amendment rights to free speech.

Defendants’ censoring of Plaintiff by banning Plaintiff from his Facebook account while exercising his free speech as President of the United States was an egregious violation of the First Amendment.

So, let's just get this out of the way. I have expressed significant concerns about lawmakers and other government officials that have tried to pressure social media companies to remove content. I think they should not be doing so, and if they do so with implied threats to retaliate for the editorial choices of these companies that is potentially a violation of the 1st Amendment. But that's because it's done by a government official.

It does not mean the private companies magically become state actors. It does not mean that the private companies can't kick you off for whatever reason they want. Even if there were some sort of 1st Amendment violation here, it would be on behalf of the government officials trying to intimidate the platforms into acting -- and none of the examples in any of the lawsuits seem likely to reach even that level (and, again the lawsuits are against the wrong parties anyway).

The second claim, believe it or not, is perhaps even dumber than the first. It asks for declaratory judgment that Section 230 itself is unconstitutional.

In censoring (flagging, shadow banning, etc.) Plaintiff and the Class, Defendants relied upon and acted pursuant to Section 230 of the Communications Decency Act.

Defendants would not have deplatformed Plaintiff or similarly situated Putative Class Members but for the immunity purportedly offered by Section 230.

Let's just cut in here to point out that this point is just absolutely, 100% wrong and completely destroys this entire claim. Section 230 does provide immunity from lawsuits, but that does not mean without it no one would ever do any moderation at all. Most companies would still do content moderation -- as that is still protected under the 1st Amendment itself. To claim that without 230 Trump would still be on these platforms is laughable. If anything the opposite is the case. Without 230 liability protections, if others sued the websites for Trump's threats, attacks, potentially defamatory statements and so on, it would have likely meant that these companies would have pulled the trigger faster on removing Trump. Because anything he (and others) said would represent a potential legal liability for the platforms.

Back to the LOLsuit.

Section 230(c)(2) purports to immunize social media companies from liability for action taken by them to block, restrict, or refuse to carry “objectionable” speech even if that speech is “constitutionally protected.” 47 U.S.C. § 230(c)(2).

In addition, Section 230(c)(1) also has been interpreted as furnishing an additional immunity to social media companies for action taken by them to block, restrict, or refuse to carry constitutionally protected speech.

Section 230(c)(1) and 230(c)(2) were deliberately enacted by Congress to induce, encourage, and promote social medial companies to accomplish an objective—the censorship of supposedly “objectionable” but constitutionally protected speech on the Internet—that Congress could not constitutionally accomplish itself.

Congress cannot lawfully induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.” Norwood v. Harrison, 413 US 455, 465 (1973).

Section 230(c)(2) is therefore unconstitutional on its face, and Section 230(c)(1) is likewise unconstitutional insofar as it has interpreted to immunize social media companies for action they take to censor constitutionally protected speech.

This is an argument that has been advanced in a few circles, and it's absolute garbage. Indeed, the state of Florida tried this basic argument in its attempt to defend its social media moderation law and that failed miserably just last week.

And those are the only two claims in the various lawsuits. That these private companies making an editorial decision to ban Donald Trump (in response to worries about him encouraging violence) violates the 1st Amendment (it does not) and that Section 230 is unconstitutional because it somehow involves Congress encouraging companies to remove Constitutionally protected speech. This is also wrong, because all of the cases related to this argument involve laws that actually pressure companies to act in this way. Section 230 has no such pressure involved (indeed, many of the complaints from some in government is that 230 is a "free pass" for companies to do nothing at all if they so choose).

There is a ton of other garbage -- mostly performative throat-clearing -- in the lawsuits, but none of that really matters beyond the two laughably dumb claims. I did want to call out a few really, really stupid points though. In the Twitter lawsuit, Trump's lawyers misleadingly cite the Knight 1st Amendment Institute's suit against Trump for blocking users on Twitter:

In Biden v. Knight 141 S. Ct. 1220 (2021), the Supreme Court discussed the Second Circuit’s decision in Knight First Amendment Inst. at Columbia Univ. v. Trump, No. 18- 1691, holding that Plaintiff’s threads on Twitter from his personal account were, in fact, official presidential statements made in a “public forum.”

Likewise, President Trump would discuss government activity on Twitter in his official capacity as President of the United States with any User who chose to follow him, except for seven (7) Plaintiffs in the Knight case, supra., and with the public at large.

So, uh, "the Supreme Court" did not discuss it. Only Justice Clarence Thomas did, and it was a weird, meandering, unbriefed set of musings that were unrelated to the case at hand. It's a stretch to argue that "the Supreme Court" did that. Second, part of President Trump's argument in the Knight case was that his Twitter account was not being used in his "official capacity," but was rather his personal account that just sometimes tweeted official information. Literally. This was President Trump appealing to the Supreme Court in that case:

The government’s response is that the President is not acting in his official capacity when he blocks users....

To then turn around in another case and claim that it was official action is just galaxy brain nonsense.

Another crazy point: in all three lawsuits, Donald Trump argues that government officials threatening the removal of Section 230 in response to social media companies' content moderation policies itself proves that the decisions by those companies make them state actors. Here's the version from the YouTube complaint (just insert the other two companies where it says YouTube to see what it is in the others):

Below are just some examples of Democrat legislators threatening new regulations, antitrust breakup, and removal of Section 230 immunity for Defendants and other social media platforms if YouTube did not censor views and content with which these Members of Congress disagreed, including the views and content of Plaintiff and the Putative Class Members

But, uh, Donald Trump spent much of the last year in office doing exactly the same thing. He literally demanded the removal of Section 230. He signed an executive order to try to remove Section 230 immunity from companies, then demaned Congress repeal all of Section 230 before he would fund the military. On the antitrust breakup front, Trump demanded that Bill Barr file antitrust claims against Google prior to the election as part of his campaign against "big tech."

It's just absolutely hilarious that he's now claiming that members of Congress doing the very same thing he did, but to a lesser degree, and with less power magically turns these platforms into state actors.

There was a lot of speculation as to what lawyers Trump would have found to file such a lawsuit, and (surprisingly) it's not any of the usual suspects. There is the one local lawyer in Florida (required to file such a suit there), two lawyers with AOL email addresses, and then a whole bunch of lawyers from Ivey, Barnum, & O'Mara, a (I kid you not) "personal injury and real estate" law firm in Connecticut. If these lawyers have any capacity for shame, they should be embarrassed to file something this bad. But considering that the bio for the lead lawyer on the case hypes up his many, many media appearances, and even has a gallery of photos of him appearing on TV shows, you get the feeling that perhaps these lawyers know it's all performative and will get them more media coverage. That coverage should be mocking them for filing an obviously vexatious and frivolous lawsuit.

The lawsuit is filed in Florida, which has an anti-SLAPP law (not a great one, but not a horrible one either). It does seem possible that these companies might file anti-SLAPP claims in response to this lawsuit, meaning that Trump could potentially be on the hook for the legal fees of all three. Of course, if the whole thing is a performative attempt at playing the victim, it's not clear that that would matter.

Filed Under: 1st amendment, class action, content moderation, donald trump, jack dorsey, mark zuckerberg, section 230, state actor, sundar pichai
Companies: facebook, twitter, youtube

Facebook Is Banning Anyone Charged With Participating In Capitol Hill Insurrection

from the really? dept

Mark Gray spotted an interesting tidbit buried in a Washington Post story about online activism among Trumpist supporters. Most of the story is the usual stuff about how propagandists are finding each other and organizing movements online. There is some of the usual hand-wringing that is standard in these stories about how social media is "enabling" this kind of activity, though it also notes that users very quickly migrated to other welcoming sites (and, also, how they've figured out ways to sneak back onto the bigger platforms):

The mainstream tech companies‘ crackdown on Trump and his followers helped splinter that vast network, researchers have found, without fundamentally weakening it. Influencers kicked off Facebook or Instagram ported followers to the lightly-policed app Telegram or right-wing YouTube rival Rumble, but they’ve also found ways to get back on the mainstream platforms by creating new accounts or using alternate language to avoid detection.

But later, the article claims that Facebook has a policy to shut down any account of anyone charged in the January 6th insurrection:

Alan Hostetter, a former local police chief and yoga teacher as well as a speaker at the June rally attended by The Post, was indicted on a charge of his alleged role in the insurrection June 10. Shortly after, he went back on Facebook Live, YouTube, Spotify, Rumble and several other services, filming himself walking on the beach in San Clemente in a “Free Man" baseball cap. He decried the Jan. 6 riot as a “false flag staged event” and a “fakesurrection” because he believed infiltrators were in the crowd.

[....]

Within hours, his accounts were banned on Facebook and Instagram. Facebook says that it does not allow people charged in the insurrection on the platform and that it may fact-check claims that the riot was staged. Spotify and YouTube removed the videos a week later.

That part I've bolded is news to me -- and quite interesting. We've talked somewhat about how off-platform activities are increasingly coming under scrutiny by platforms in their content moderation/trust and safety efforts, but this is the first I've heard of any platform (let alone Facebook) having a blanket policy of refusing to allow those charged in the January 6th attack from using their platform.

At the very least, this does raise some questions. Since it's just based on charging, and not on conviction, what happens if the charges are dropped or the person is acquitted? That may be unlikely with many (if not all) of the January 6th folks, but it does raise some questions. And is the ban permanent? So far, the initial January 6th cases, against those who didn't seem to do that much once in the Capitol, have involved relatively mild sanctions. Will that also include a lifetime ban from Facebook? Should it?

Obviously, Facebook is free to moderate how it wants, and I think this will be interesting to follow over time. Will there be other situations in which being charged with a crime leads to your removal from Facebook? The Supreme Court weighed in on this issue in the Packingham case, that you can't have a law that requires the loss of internet service in response to a crime, but that only applies to laws. Facebook still has the freedom to refuse service to anyone it chooses.

At the very least, it will be interesting to watch how this kind of policy -- regarding off platform activities -- evolves on Facebook and other social networks.

Filed Under: banning, charges, content moderation, insurrection, january 6th
Companies: facebook

Court Rejects Facebook User's Lawsuit Demanding $10 Million Per Day In Damages For Having His Posts Removed

from the all-things-in-moderation...-except-these-monetary-demands dept

How many constitutional rights can Facebook violate? To paraphrase Nigel Tufnel, the answer is none. None rights can be violated.

That won't stop people from suing social media platforms for having their posts/accounts moderated. Do a bit of deletion and all of sudden some people feel they have a federal case. Mandela Brock, d/b/a Mandel El'Shabazz on Facebook, got on the wrong side of some moderation and decided to sue about it.

The complaint [PDF] alleges a whole host of constitutional violations on the part of Facebook, which had removed some posts that violated the site's Community Guidelines. This is what Brock alleged:

As of the time that Plaintiff, Mandela Brock, was unconstitutionally subjected to censorship, without "just cause," and stripped of his rights, privileges, and immunities guaranteed by the United States Constitution, the New York State Constitution, along with federal and state law, there continues to be a pervasive and high-handed unwillingness of the defendants to obey the laws that govern them or to ensure the individual defendants, who they are mandated by law to supervise, follow the laws that govern them in particular the United States Constitution.

Moving beyond that, there are accusations that Facebook violated Brock's free speech, subjected him to psychological torture, "denial of his right to protest in a public square," and otherwise angered him to the point of litigation. According to Brock, Facebook violated his First, Fifth, Sixth, and Fourteenth Amendment rights. There's also a RICO allegation (because of course there is). That allegation surfaced after Facebook tried to relocate the lawsuit to its native California. (I'm sorry, I'm just reporting the facts. I cannot actually explain that part to you.)

Here's an indicative sample of the posts Brock created that Facebook removed:

If you can't see the embeds, perhaps you should feel grateful.

Brock's lawsuit asked for compensatory damages of $1 million "per account restriction" and $250,000 a day per "individual restriction violation of rights" as well as punitive damages of $10 million per day (plus $500,000/day) for the same thing. Also attorney fees, despite representing himself.

The complaint is signed Mandela Brock, Belligerent Complainant, Sui Juris Prose, In Propia Persona.

So, how much does Facebook owe for taking down Brock's n-word-loaded posts? None. None of the above. (via Eric Goldman)

Despite the plaintiff's citation of cases that don't actually help him (like Pruneyard and a case involving a labor union protest in front of a business{??}) [oh, and the California Constitution for some reason, which isn't going to help in New York], the court (performing the charitable reading of the complaint required in pro se cases) says there are no rights violations here. Just a private company doing private company stuff.

From the decision [PDF]:

Plaintiff’s claims based on the First Amendment, as well as on the Fifth, Sixth, and Fourteenth Amendments, therefore fail at the threshold because Facebook is not a state actor. Plaintiff contends that Facebook’s status as a “state actor” is “immaterial” because Facebook is performing a function “traditionally” performed by the government. The relevant function that Facebook provides is an online platform for speech. Plaintiff also analogizes Facebook’s provision of an online messaging service to the government’s traditional provision of mail services through the United States Postal Service. However, “[i]t is ‘not enough’ that the relevant function is something that a government has ‘exercised . . . in the past, or still does’ or ‘that the function serves the public good.’” Prager Univ., 951 F.3d at 998 (quoting Halleck, 139 S. Ct. at 1928-29). The government must have performed the function in question exclusively as well. Halleck, 139 S. Ct. at 1929. Facilitating the exchange of communication or hosting a platform for discussion are not activities “that only governmental entities have traditionally performed.” Prager Univ., 951 F.3d at 998...

At least the plaintiff can now proudly claim he got shot down just like Prager U, which also wastes a lot of everyone's time (including that of courts) attempting to portray social media companies as public utilities or public squares in order to advance its theory that its rights have been violated every time its content gets moderated.

The same goes for Brock's "new town square" argument.

The Supreme Court held in Marsh v. State of Alabama, 326 U.S. 501, 506 (1946) that citizens in a company-owned town were guaranteed constitutional protections against the deprivation of their First Amendment rights by the company, but courts have refused to extend Marsh’s holding to social media cases.

Brock also claimed that moderation of his content violated Section 230. Nope.

Facebook is immune under Section 230(c)(1) from claims related to its removal of objectionable content.

That's it for Brock. If Brock still wants to avail himself of the use of private property, he'll have to follow the owner's rules. It's that simple.

Filed Under: 1st amendment, content moderation, mandela brock, section 230
Companies: facebook

Former Trump Aide Launches Twitter Clone, That Seems To Yank A Ton Of Data Right Out Of Twitter; Already Has First Content Moderation Crisis

from the freeze-peach dept

Just as more news of what Trump wanted from Parler breaks, comes the news that his somewhat infamous former aide, Jason Miller, has launched a social media site called GETTR. It should be noted that through all of the rumors about Trump starting his own social network, it was usually Jason Miller who was claiming that it was on the way.

Apparently, though, Miller stepped down from his role as Trump spokesperson to run GETTR -- and there are reports claiming that the originator of GETTR is someone trying to build "an important link between China and the West" with GETTR and a series of related apps.

Separately, a Bloomberg White House reporter says Trump isn't planning on joining GETTR and is still planning yet another social network. So... we'll see.

Of course, like every single social media site, while this one claims it's all about free speech, its terms of service make it clear it can kick you off the platform for any reason whatsoever:

GETTR holds freedom of speech as its core value and does not wish to censor your opinions. Nonetheless, GETTR may, but will not have any obligation to, review, monitor, display, post, store, maintain, accept, or otherwise make use of, any of your UGC, and GETTR may, in its sole discretion, reject, delete, move, re-format, remove, or refuse to post or otherwise make use of UGC without notice or any liability to you or any third-party in connection with our operation of UGC venues in an appropriate manner, such as to enhance accessibility of UGC, address copyright infringement, and protect Users from harmful UGC. Without limitation, we may, but do not commit to, do so to address content that comes to our attention that we believe is offensive, obscene, lewd, lascivious, filthy, pornographic, violent, harassing, threatening, abusive, illegal, or otherwise objectionable or inappropriate, or to enforce the rights of third parties or these Terms or any applicable Additional Terms. For example, this may include content identified as personal bullying, sexual abuse of a child, attacking any religion or race, or content containing video or depictions of beheadings. Such UGC submitted by you or others need not be maintained on the Service by us for any period of time, and you will not have the right, once submitted, to access, archive, maintain, change, remove, or otherwise use such UGC on the Service or elsewhere, except that certain users may have certain additional rights as provided for in the Privacy Policy.

I like how they take phrases directly from Section 230 and insert it there. Though it's also amusing that they add "inappropriate" to "otherwise objectionable," seeing as Trumpworld has been trying to delete "otherwise objectionable" from 230 entirely, and limiting 230 to just a specific list of "bad" stuff. Yet, GETTR seems to be claiming even broader rights to moderate.

And, not surprisingly, the company is already, on its first day, dealing with some moderation issues as it appears that people trolling the site are flooding it with junk:

It turns out that every social media site, so as not to be filled with garbage, has to do some moderation. Though it'll be fun to square the views of people who insist that social media sites shouldn't do any such moderation with the need to clear out the "lewd anime pics and the "pig poop balls" meme" from the #QAnon tag.

But there are some other concerns as well. People are noticing that not only does GETTR look remarkably similar to Twitter (with a slightly larger character limit -- 777 characters), but that it seems to be grabbing a bunch of data directly from Twitter. Indeed, in what appears like a move to "boost" user numbers, reports say that if you use your own Twitter account name, GETTR will "import" all your followers -- apparently by creating fake ghost accounts for all of those accounts.

GETTR’s app also claims to offer new users the ability to “import copies of your content from Twitter to GETTR.” And evidence on the site indicates that the new platform is also allowing users to import their actual Twitter followers — who somehow end up with GETTR accounts of their own.

For example, Republican Senate candidate Sean Parnell in Pennsylvania, had over 175,000 followers on GETTR as of Thursday afternoon, despite only joining the platform Thursday. His follower count on GETTR is identical to his follower count on Twitter.

The same goes for Murtaugh, Trump’s former 2020 communications director, who had amassed over 220,000 followers on both GETTR and Twitter as of Thursday afternoon.

“Tweets are up to the point you join, it won’t continuously suck them in. The idea is we want people to move from Twitter to Gettr,” said the person involved with the app. The person added that the app does not harvest the users current Twitter followers for the app, and again noted it is in Beta.

I do wonder how Twitter will feel about that. Of course, to some extent, this is somewhat like the vision Twitter has for Bluesky, but that hasn't been implemented yet. And just pulling out all of someone else's data raises... quite a few questions. It does seem worth mentioning that the ACCESS bill that was introduced in Congress recently would require Twitter and others to allow such exporting of data to other services.

But GETTR seems to be going, well, to a fairly extreme level. To get images from Twitter... it's hotlinking images DIRECTLY FROM TWITTER. In other words, it's not grabbing those images, it's just displaying them as hosted by Twitter. That's... bold. In some ways it's just reskinning Twitter.

I don't necessarily think this is a bad thing. As I've discussed for years, being able to let users snarf their own data out of one service and into another is a good thing for competition. But... it can also raise a bunch of other questions regarding privacy, data control, possibly copyright, and (under the decision in the Facebook/Power case), possible CFAA violations. That is to say, I hope GETTR has some good lawyers lined up. The fact that they apparently fucked up their DMCA registration doesn't bode well on that front.

Anyway, I guess we're now going to see if GETTR gets to speed run the content moderation learning curve the same way Parler did -- and how it deals with content moderation and (better yet) questions around Section 230.

Filed Under: content moderation, copyright, donald trump, hotlinking, jason miller, section 230, social media
Companies: gettr, twitter

Trump Allegedly Demanded Parler Kick Off His Critics If It Wanted Him On The Platform

from the so-free-speechy dept

There has been a lot of speculation regarding whether or not Donald Trump would set up his own social network or if he'd just join one of the struggling social networks which only seem to exist in order to cater to Trump's most fervent supporters. Parler, obviously, gets a lot of attention and earlier this year there were reports that, while Trump was still President, he had entered into negotiations to take an equity stake in Parler and then embrace the platform as his preferred social network. As we noted back then, "for whatever reasons, the agreement did not materialize."

A new book by Michael Wolff suggests one possible reason. It claims that Trump demanded that Parler had to block Trump's critics from its platform:

One curious point of consideration for the [Trump] family [the morning of January 6th] — prescient of the events that would shortly unfold — was a follow-up to a discussion initiated some months before by aides and family. Trump representatives, working with Trump-family members, had approached Parler, the social network backed by Bob Mercer and his daughter Rebekah, far-right exponents and large Trump contributors. They had floated a proposition that Trump, after he left office, become an active member of Parler, moving much of his social-media activity there from Twitter. In return, Trump would receive 40 percent of Parler’s gross revenues and the service would ban anyone who spoke negatively about him.

Parler was balking only at this last condition.

Of course, this is absolutely hilarious for so many reasons. For years, Trump has been whining about how social media shouldn't be allowed to ban him and his friends, and couched it in (false) claims of supporting "free speech." Yet, here he was apparently making it clear that he not only wanted active content moderation on Parler, but that the moderation had to be directed at anyone who criticized him.

How very free speechy of him.

Of course, if Parler decided it did want to do this, it could. The 1st Amendment would protect such a decision, and with it, Section 230 would protect it from being sued for such decisions.

I do wonder if this was some kind of reaction to the Knight Institute case that established that, while he was President, Trump couldn't block followers from accounts he used for conducting official Presidential business. You could see how he (and his associates) might think that a neat workaround to this 1st Amendment conundrum would be an agreement to have the platform do the blocking instead (of course, if Trump were still President, that would present another set of 1st Amendment issues, but thankfully we don't have to deal with those now).

I am, however, quite excited to see what the crew of Trump-loving folks who show up in our comments think about this. After all, they regularly insist that they really just want social media companies to never ban anyone.

Filed Under: banning critics, content moderation, donald trump, ideological bias, section 230, social media
Companies: parler

Robert F. Kennedy Jr. Ridiculous Lawsuit Against Facebook Gets Tossed Out Of Court

from the it's-not-rico-or-state-action-or-trademark-infringement dept

As you may recall, last summer we wrote about what we referred to as an "insanely stupid" lawsuit that Robert F. Kennedy had filed against Facebook on behalf of his wacky anti-vax organization "Children's Health Defense" (CHD). The issue, of course, is that Facebook blocked CHD from posting the usual conspiracy theories and medical disinformation that RFK Jr. has been known to spread. But the case tried out some "new" theories on why such moderation was against the law: specifically, it argued that Section 230 turned websites into state actors by "privatizing" censorship and also that because Rep. Adam Schiff had sent a letter to Facebook asking it to crack down on disinformation on vaccines, that this also made them a state actor.

A few months later, disgraced (and suspended) Yale law professor Jed Rubenfeld published a Wall St. Journal op-ed pushing the same dopey theory about 230 making private companies state actors. So it wasn't all that surprising when it came time for a hearing on RFK's dopey case, Rubenfeld showed up in court to push the idea on behalf of Children's Health Defense.

It seems that the legal argument went over about as well as we expected: the court has dismissed the case. The dismissal of the case goes deep on a variety of arguments -- not all of which we need to dig into here, but suffice it to say, Facebook (and Mark Zuckerberg) are not state actors. First, the fact that Facebook has "worked with" the CDC to gather information does not, in fact, make it a state actor:

... general statements by the CDC and Zuckerberg about “working together” to reduce the spread of health or vaccine misinformation, or to promote universal vaccination do not show that the government was a “joint participant in the challenged activity,” specifically the decision to put the warning label on CHD’s Facebook page, the fact-checks, and Facebook’s “demonetization” and “shadow-banning” of CHD’s content and page. For example, one of the allegations CHD relies upon is contained in Paragraph 52 of the SAC, which alleges, “Zuckerberg has stated publicly that Facebook is working with both the CDC and the WHO: ‘We work with the [Centers for Disease Control and Prevention] and we work with [the World Health Organization] and trusted health organizations to remove clear misinformation about health-related issues that could cause an imminent risk of harm.’”.... This statement (and similar general statements by Zuckerberg, Facebook, the CDC, or other entities within the federal government about “working to remove misinformation”) does not support the inference that Facebook (or Zuckerberg) worked in concert with the CDC to censor CHD’s speech, retaliate against CHD, or otherwise violate CHD’s constitutional rights.

Schiff's letter also fails to magically turn Facebook into a state actor:

Relying on Congressman Schiff’s February 2019 letter to Zuckerberg, CHD contends that Congressman Schiff “provided a substantive standard – deference to CDC/WHO pronouncements conclusively presumed to be ‘authoritative’ – by which Facebook should identify and censor vaccine ‘misinformation’ on its platform.” SAC ¶ 61. However, nowhere in the letter does Rep. Schiff direct Facebook to adopt any specific standard to follow when it determines what speech constitutes vaccine misinformation or whether particular posts are false or misleading. Instead, Rep. Schiff’s letter expressed his concern about the existence of “medically inaccurate information about vaccines” on Facebook and other social media platforms, and he asked Facebook for information about whether content that “provides medically inaccurate information about vaccines” violates Facebook’s terms of service and what actions Facebook “currently take[s] to address misinformation related to vaccines on your platforms” and whether Facebook was “considering or taking additional actions?” .... None of the general statements or questions in Representative Schiff’s letter can be interpreted as providing a specific standard of decision that mandated the particular actions that Facebook took with regard to CHD’s Facebook page. ... Indeed, the Court notes that the SAC alleges that Facebook began censoring its speech starting on January 15, 2019, which was prior to Rep. Schiff’s letter

And just because Facebook relies on the CDC to figure out what might be mis- or dis-info, doesn't mean that Facebook magically is a state actor either. It just means that Facebook, of its own free will, relies on what it believes is a credible source of information regarding health information.

Nor does the fact that Facebook directs users to the CDC website for information about vaccines mean that the CDC has supplied the “standard of decision” for Facebook’s regulation of content on its platform. Similarly, simply alleging that Facebook and the CDC are “working together” or “partnering” to curb the spread of “vaccine misinformation” does not allege that the specific acts challenged in this lawsuit were made pursuant to a CDC policy. Instead, what CHD has plausibly alleged is that Facebook created its own algorithms and standards for detecting “vaccine misinformation,” and that in doing so, Facebook may have relied on CDC information about vaccines to determine what information is “misinformation.” That is not enough to show that Facebook’s actions were “compelled” by any particular CDC “standard of decision.”

The Rubenfeld-style argument that 230 magically makes Facebook a state actor falls flat on its face. CHD relied on Skinner v. Railway Labor Executives Association, a case that involved railroad regulations that forced private railroad companies to administer blood and urine tests to employees involved in accidents. The "forced" part is kind of key here, as nothing in 230 forces anything. And, unlike CHD's lawyers, the court actually understood that:

Skinner does not aid CHD. “Unlike the regulations in Skinner, Section 230 does not require private entities to do anything, nor does it give the government a right to supervise or obtain information about private activity.” Divino Grp. LLC v. Google LLC, No. 19-CV-04749-VKD, 2021 WL 51715, at *6 (N.D. Cal. Jan. 6, 2021). In Divino Group, the plaintiffs asserted that the “the availability of protections under Section 230 of the CDA amounts to government endorsement of defendants’ alleged discrimination,” and thus that YouTube should be considered a state actor. Judge DeMarchi rejected that contention, stating, “nothing about Section 230 is coercive” and “Section 230 reflects a deliberate absence of government involvement in regulating online speech: ‘Section 230 was enacted, in part, to maintain the robust nature of Internet communication, and accordingly, to keep government interference in the medium to a minimum.’” Id. (quoting Batzel v. Smith, 333 F.3d 1018, 1027 (9th Cir. 2003)); see also 47 U.S.C. § 230(b)(2) (“It is the policy of the United States . . . to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.”). The court held, “[a]t most, Section 230 provides protection from civil liability for interactive computer service providers who elect to host information provided by another content provider, or who in good faith act to restrict materials that the provider or user considers ‘obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable,’ regardless of whether that material is constitutionally protected.” Id. at *7 (quoting 47 U.S.C. § 230(c)(2)(A)). The Court agrees with Judge DeMarchi’s analysis and concludes that the immunity provided by Section 230 does not provide sufficient “encouragement” to convert Facebook’s private acts into state action.

There was also an equally silly trademark claim (Prager U tried this nonsense in its failed case against YouTube). To make this work, CHD argued that Facebook was a "commercial competitor" to itself (what?!?) and that it's was "promoting competitive products" in pushing people away from CHD's anti-vax nonsense and towards actual scientific medical information. The court is not buying it.

However, the warning label and fact-checks are not disparaging CHD’s “goods or services,” nor are they promoting the “goods or services” of Facebook, the CDC, or the fact-checking organizations such as Poynter. In addition, the warning label and fact-checks do not encourage Facebook users to donate to the CDC, the fact-checking organizations, or any other organization. Instead, the warning label informs visitors to CHD’s Facebook page that they can visit the CDC website to obtain “reliable up-to-date information” about vaccines, and the fact-checks identify that a post has been fact-checked, with a link to an explanation of why the post/article has been identified as false or misleading. For example, the Poynter fact-check identified in the SAC consisted of an explanation of why the title of an article written by third party Collective Evolution and posted to CHD’s Facebook page was “false.” Thus, all of the alleged misrepresentations – the warning label and the fact-checks – are simply providing information, albeit information with which CHD disagrees.

Indeed, CHD expressly equates “goods” and “services” with information: CHD argues, “In particular, false fact-check labels expressly tout Poynter’s putatively superior information, thus competing with CHD for donation revenue by actively ‘promoting’ their competing ‘products and services.’” CHDs Opp’n to Poynter’s Mtn. at 17 (emphasis added). Under CHD’s expansive and novel theory of false advertising, any Facebook warning label identifying an alternative source of information and any fact-check with an explanation would constitute false advertising under the Lanham Act because of an injury to “messaging.”

The court calls out that this "novel" legal theory of CHD's is so novel that it can't cite any precedent to support it:

Unsurprisingly, CHD does not cite any authority for the proposition that its “messaging” constitutes “goods” or “services” for purposes of the Lanham Act. Nor does CHD cite any support for its assertion that a defendant can be held liable under the Lanham Act based on speech that is untethered to the sale of goods or services. To the contrary, courts have held that “[t]he mere fact that the parties may compete in the marketplace of ideas is not sufficient to invoke the Lanham Act.” Farah v. Esquire Mag., 736 F.3d 528, 541 (D.C. Cir. 2013) (emphasis in original). In Farah, the D.C. Circuit dismissed a Lanham Act claim brought by a book publisher based on a satirical article posted on Esquire’s politics blog. The court noted that “Farah and Corsi do not allege that Esquire is selling or promoting a competing book. Instead, they assert that ‘generally’ Esquire is their competitor, and maintain that they too ‘write frequently about the birth certificate and ‘natural born citizen’ issues,’ and that ‘readers frequently [] read publications that contain ‘points’ and ‘counterpoints.’” Id. The court held these allegations were insufficient to state a claim because they did not involve commercial speech actionable under the Lanham Act. Id.; see also Bosley, 403 F.3d at 679 (holding there was no liability under the Lanham Act where an unsatisfied hair transplant customer used Bosley’s marks for criticism because the customer’s “use of the Bosley mark [was] not in connection with a sale of goods or services—it [was] in connection with the expression of his opinion about Bosley’s goods and services.”); Edward Lewis Tobinick, MD v. Novella, 848 F.3d 935, 950-52 (11th Cir. 2017) (holding author’s blog posts, which contained allegedly false and defamatory statements about physician’s medical practice, did not constitute commercial speech subject to the Lanham Act where posts did not propose commercial transactions and where stated purpose of the blog was to provide objective analysis of questionable or controversial medical claims); Utah Lighthouse Ministry v. Found. for Apologetic Info. & Research, 527 F.3d 1045, 1054 (10th Cir. 2008) (dismissing Lanham Act claims against the creators of a parody website that criticized religious bookstore’s views because “[u]nless there is a competing good or service labeled or associated with the plaintiff’s trademark, the concerns of the Lanham Act are not invoked.”)

Also, if you remember my post about the original lawsuit, you'll remember that there's a Popehat's Favorite RICO claim included. Anyway, the judge here does the judicial equivalent of Ken White's "IT'S NOT RICO, DAMMIT."

The Court concludes that CHD’s allegations of wire fraud – both those actually plead in the SAC and those unpled but asserted in CHD’s opposition briefs – do not constitute wire fraud because CHD has not alleged any facts showing that defendants engaged in a fraudulent scheme to obtain money or property from Facebook visitors to CHD’s page (or anyone else, including CHD) Assuming arguendo that the various alleged misrepresentations, omissions and acts could constitute a fraudulent “scheme,” neither the SAC nor CHD’s oppositions asserts that any Facebook users actually donated to any other organization, much less donated to another organization because they were deceived by defendants’ scheme. Instead, CHD advances a speculative theory that defendants engaged in wire fraud by deceiving visitors to CHD’s Facebook page through the “false” fact-check labels, diverting those visitors to the websites of other organizations, and that those individuals, once diverted, may have donated to CHD’s competitors as a result of defendants’ deception. CHD’s theory of wire fraud is unsupported by any factual allegations that “defendant[s] used the . . . wires to obtain money or property from the plaintiff or a non-party.” Sugarman, 2020 WL 633596, at *3. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.

The court clearly is not buying the argument's RFK Jr cooked up:

The cases upon which CHD relies are inapposite and unavailing. CHD argues that a person could still be guilty of wire fraud even if the money fraudulently obtained went to “third parties” or “associates.” See United States v. Sorich, 523 F.3d 702, 709 (7th Cir. 2008) (holding that the “private gain” criterion of “honest services mail fraud” “simply mean[s] illegitimate gain,” which does not necessarily have to go to defendant, but may instead go to another party); United States v. Spano, 421 F.3d 599, 603 (7th Cir. 2005) (holding that “[a] participant in a scheme to defraud is guilty [of honest services mail fraud] even if he is an altruist and all the benefits of the fraud accrue to other participants”); United States v. Rezko, No. 05 CR 691, 2007 WL 2904014, at *5 (N.D. Ill. Oct. 2, 2007) (rejecting the defendant’s argument that indictment for mail and wire fraud was insufficient because it did not allege defendant personally gained where indictment alleged defendant’s associates benefitted from fraud). However, CHD has not alleged any facts to establish that defendants, their associates, or any third party obtained money or property from deceived Facebook users or from CHD.

IT'S NOT RICO, DAMMIT.

Then the court responds to CHD's desire to pile on more claims and more evidence, including (I kid you not), wanting to submit evidence from Project Veritas, that bastion of ethical reporting techniques. The court points out that none of the additional information CHD wants to submit would cure the fundamental problem: Facebook gets to decide how to moderate its own damn site and it's not the government.

As relevant to the Bivens claim against Zuckerberg, none of the proposed new allegations show that Zuckerberg was personally involved in any decisions regarding CHD’s Facebook page. Nor do any of the supplemental allegations show any joint action with the federal government with regard to CHD’s Facebook page. Instead, some of the new allegations mention Robert F. Kennedy, Jr.’s Instagram account, but Mr. Kennedy is not a plaintiff in this litigation. E-mails between Zuckerberg and Dr. Fauci about a COVID information “hub” on Facebook do not relate to any actions taken regarding CHD’s Facebook page. The allegations about other members of Congress making statements about the need for social media companies to remove harmful or dangerous content from their platforms, including “vaccine misinformation,” or about the possibility of legislation to remove Section 230 immunity are too general to support a claim of governmental coercion, as there are no allegations that any public official pressured Facebook to take any specific actions regarding CHD’s page.

Similarly, none of the proposed supplemental allegations would enable CHD to state claims under the Lanham Act or RICO. The supplemental allegations do not show that CHD has suffered an injury within the Lanham Act’s “zone of interests” or that defendants have engaged in commercial speech actionable under that statute. Nor do any of the proposed supplemental allegations establish the elements of wire fraud as is necessary for the RICO claim.

Thus, even if it were true that Facebook “embarked on a campaign to block speech and information according to a COVID ‘vaccine hesitancy’ algorithm regardless of the truth or falsity of that speech,” CHD’s Mtn. to Further Supplement at 2, those allegations do not address the necessary elements of any of CHD’s causes of action.

CHD also gets a bit of a benchslap in response to its demands to be able to go on fishing expeditions through Mark Zuckerberg's communications using (again, I kid you not) the infamous All Writs Act to do so:

CHD argues that its allegations are sufficient at the pleadings stage, and that it should be permitted to engage in discovery to explore issues such as Zuckerberg’s personal involvement, government contact with Facebook, and whether Facebook users were deceived by the warning label and fact-checks... Similarly, invoking the All Writs Act, CHD asserts that this is an “extraordinary” situation where the Court should lift the stay on discovery and order Facebook to produce unredacted emails between Zuckerberg and Dr. Fauci about Zuckerberg’s “offer” to determine if there is any factual support for CHD’s allegations. However, that is not how federal litigation operates. A plaintiff must plausibly allege a claim at the pleadings stage in order for the case to proceed

And thus, the case is dismissed without leave to amend. There is still one tiny part of the case that kinda sorta lives on -- which is that Science Feedback, a French company that Facebook employs to do some fact-checking, was named as a defendant, but never served. The case against it is also dismissed, but without prejudice, so in theory CHD could try to reinstate that part of the case, but that seems unlikely to (1) work or (2) achieve anything even remotely useful.

Filed Under: 1st amendment, adam schiff, bivens claim, content moderation, jed rubenfeld, rico, robert f. kennedy jr., section 230, state actors, vaccinations
Companies: children's health defense, facebook

As Expected: Judge Grants Injunction Blocking Florida's Unconstitutional Social Media Law

from the boom-goes-the-dynamite dept

I'm sorry, but those of you looking forward to riding the Friend Feed Flume at Zuckland or the Search Engine Shuffle at GooglePark are probably out of luck. Florida's new social media law (and its theme park owner exemption) is not going to become law.

We've written a few times about Florida's blatantly corrupt and unconstitutional social media content moderation law -- complete with its special carveout for Disney*. The legal challenge to the bill had a hearing in court on Monday, and as we expected, Florida's arguments in favor of the bill were not well received. I listened to the entire hearing and, to put it mildly, the judge was not impressed by Florida's arguments. At one point, he literally asked the lawyer defending the bill if he had ever come across a more poorly drafted piece of legislation. That's generally not a good sign.

And, now, with just hours to go until the law was supposed to go into effect, the judge has granted the preliminary injunction blocking the bill, and the ruling makes it pretty clear that this bill is not going to survive. Of course, Florida will likely appeal the ruling, and it'll be up to the Appeals Court to go into more depth. During the hearing, the judge, Robert Hinkle, more or less admitted this would be the case, and said that his ruling wouldn't go that deep, because what the Appeals Court says will be more important in the long run. Even so, the ruling is worth exploring, as it smashes the law to bits in a variety of ways.

The State of Florida has adopted legislation that imposes sweeping requirements on some but not all social-media providers. The legislation applies only to large providers, not otherwise-identical but smaller providers, and explicitly exempts providers under common ownership with any large Florida theme park. The legislation compels providers to host speech that violates their standards—speech they otherwise would not host—and forbids providers from speaking as they otherwise would. The Governor’s signing statement and numerous remarks of legislators show rather clearly that the legislation is viewpoint-based. And parts contravene a federal statute. This order preliminarily enjoins enforcement of the parts of the legislation that are preempted or violate the First Amendment.

So, let's start with ye olde 1st Amendment. As we predicted, it's pretty clear that this law violates it. The judge agrees. For all the talk of how the law supposedly "protects" the 1st Amendment, the judge recognized it absolutely does the opposite. I've tried to highlight the key bits if you want to skim:

First, the State has asserted it is on the side of the First Amendment; the plaintiffs are not. It is perhaps a nice sound bite. But the assertion is wholly at odds with accepted constitutional principles. The First Amendment says “Congress” shall make no law abridging the freedom of speech or of the press. The Fourteenth Amendment extended this prohibition to state and local governments. The First Amendment does not restrict the rights of private entities not performing traditional, exclusive public functions. See, e.g., Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1930 (2019). So whatever else may be said of the providers’ actions, they do not violate the First Amendment.

Second, the First Amendment applies to speech over the internet, just as it applies to more traditional forms of communication. See, e.g., Reno v. ACLU, 521 U.S. 844, 870 (1997) (stating that prior cases, including those allowing greater regulation of broadcast media, “provide no basis for qualifying the level of First Amendment scrutiny that should be applied” to the internet).

Third, state authority to regulate speech has not increased even if, as Florida argued nearly 50 years ago and is again arguing today, one or a few powerful entities have gained a monopoly in the marketplace of ideas, reducing the means available to candidates or other individuals to communicate on matters of public interest. In Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), the Court rejected just such an argument, striking down a Florida statute requiring a newspaper to print a candidate’s reply to the newspaper’s unfavorable assertions. A similar argument about undue concentration of power was commonplace as the social-media restrictions now at issue advanced through the Florida Legislature. But here, as in Tornillo, the argument is wrong on the law; the concentration of market power among large social-media providers does not change the governing First Amendment principles. And the argument is also wrong on the facts. Whatever might be said of the largest providers’ monopolistic conduct, the internet provides a greater opportunity for individuals to publish their views—and for candidates to communicate directly with voters—than existed before the internet arrived. To its credit, the State does not assert that the dominance of large providers renders the First Amendment inapplicable.

The court then explores various precedential cases regarding the ability of the government to compel a private company to host speech and finds that the arguments of Florida are lacking. Since there are speech issues at stake, the law must be subject to strict scrutiny -- and as such it fails the 1st Amendment test. Indeed, public statements made by Florida's governor Ron DeSantis, grandstanding about this bill, are part of what helped to sink it (it would have been sunk anyway, but it's amusing to see his public statements used by the judge here):

The plaintiffs assert, too, with substantial factual support, that the actual motivation for this legislation was hostility to the social media platforms’ perceived liberal viewpoint. Thus, for example, the Governor’s signing statement quoted the bill’s sponsor in the House of Representatives: “Day in and day out, our freedom of speech as conservatives is under attack by the ‘big tech’ oligarchs in Silicon Valley. But in Florida, we said this egregious example of biased silencing will not be tolerated.” Similarly, in another passage quoted by the Governor, the Lieutenant Governor said, “What we’ve been seeing across the U.S. is an effort to silence, intimidate, and wipe out dissenting voices by the leftist media and big corporations. . . . Thankfully in Florida we have a Governor that fights against big tech oligarchs that contrive, manipulate, and censor if you voice views that run contrary to their radical leftist narrative.” This viewpoint-based motivation, without more, subjects the legislation to strict scrutiny, root and branch. See, e.g., Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995) (“The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.”) (citing Perry Ed. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46 (1983)).

Moreover, these statements are consistent with the statutory definition of “social media platform,” which extends only to, and thus makes the legislation applicable only to, large entities—those with $100 million in revenues or 100 million monthly participants. As the Supreme Court has recognized, discrimination between speakers is often a tell for content discrimination. See, e.g., Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 340 (2010) (“Speech restrictions based on the identity of the speaker are all too often simply a means to control content.”). That is the case here. The state has suggested no other basis for imposing these restrictions only on the largest providers. And even without evidence of an improper motive, the application of these requirements to only a small subset of social-media entities would be sufficient, standing alone, to subject these statutes to strict scrutiny. See, e.g., Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575, 591 (1983); Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 229 (1987).

And, yeah, the Disney carveout is seen as a tell as well:

Finally, the same is true of the exclusion for social-media providers under common ownership with a large Florida theme park. The State asserted in its brief that the provision could survive intermediate scrutiny, but the proper level of scrutiny is strict, and in any event, when asked at oral argument, the State could suggest no theory under which the exclusion could survive even intermediate scrutiny. The State says this means only that the exclusion fails, but that is at least questionable. Despite the obvious constitutional issue posed by the exclusion, the Legislature adopted it, apparently unwilling to subject favored Florida businesses to the statutes’ onerous regulatory burdens. It is a stretch to say the severability clause allows a court to impose these burdens on the statutorily excluded entities when the Legislature has not passed, and the Governor has not signed, a statute subjecting these entities to these requirements.

The judge then goes even further, by noting that even if you applied intermediate scrutiny (a lower standard) the bill still wouldn't live up to 1st Amendment requirements:

The provisions at issue here do not meet the narrow-tailoring requirement. Indeed, some of the disclosure provisions seem designed not to achieve any governmental interest but to impose the maximum available burden on the social media platforms

The judge also follows up on his comments during the hearing about how poorly drafted the law is to note the many problems in the law for being vague and open to wildly different interpretations, but notes that given the other reasons to block the law, he doesn't need to use the vagueness issue for the injunction.

In the end, the court recognizes that this bill was really all about punishing a few companies, and that's not how the law is supposed to work:

The legislation now at issue was an effort to rein in social-media providers deemed too large and too liberal. Balancing the exchange of ideas among private speakers is not a legitimate governmental interest. And even aside from the actual motivation for this legislation, it is plainly content-based and subject to strict scrutiny. It is also subject to strict scrutiny because it discriminates on its face among otherwise-identical speakers: between social-media providers that do or do not meet the legislation’s size requirements and are or are not under common ownership with a theme park. The legislation does not survive strict scrutiny.

There is also, extremely briefly, a recognition that the law is likely pre-empted by Section 230, basically highlighting that the law clearly violates 230's prohibitions on allowing platforms to moderate as they see fit:

Florida Statutes § 106.072 prohibits a social media platform from deplatforming a candidate for office and imposes substantial fines: $250,000 per day for a statewide office and $25,000 per day for any other office. But deplatforming a candidate restricts access to material the platform plainly considers objectionable within the meaning of 47 U.S.C. § 230(c)(2). If this is done in good faith—as can happen—the Florida provision imposing daily fines is preempted by § 230(e)(3). Good faith, for this purpose, is determined by federal law, not state law. Removing a candidate from a platform based on otherwiselegitimate, generally applicable standards—those applicable to individuals who are not candidates—easily meets the good-faith requirement. Indeed, even a mistaken application of standards may occur in good faith.

The federal statute also preempts the parts of Florida Statutes § 501.2041 that purport to impose liability for other decisions to remove or restrict access to content. See Fla. Stat. § 501.2041(6) (creating a private right of action for damages for violations of § 501.2041(2)(b) and (2)(d)1; id. § 501.2041(2)(b) (requiring a social media platform to apply censorship, deplatforming, and shadow banning standards in a consistent manner); id. § 501.2041(2)(d)1 (prohibiting a social media platform from deplatforming a user or censoring or shadow banning a user’s content without notifying the user); § 501.2041(2) (making any violation of that subsection an unfair or deceptive act or practice within the meaning of § 501.204—and thus providing a private right of action for damages under § 501.211).

Claims based on alleged inconsistency of a platform’s removal of some posts but not others are preempted.

That last line needs to be repeated over and over again for every state considering these kinds of laws.

Anyway, Florida is almost certainly going to waste more taxpayer dollars and appeal this ruling, but it's really difficult to see how the law survives. It was a garbage unconstitutional bill from the very beginning -- a point that many, many people made clear to both Governor DeSantis and the legislators who pushed this bill. But, of course, the goal was never to get this bill into actual law. It was all a big theater production -- to let them pretend to be culture warriors against "the libs" who they claim run social media platforms. It's just unfortunate that they get to throw away taxpayer money on their theatrical grandstanding.

* By the way, if you'd like to see a fun moment in the Florida legislature during the debate over the bill, check out this fairly incredible video of the discussion between Rep. Blaise Ingoglia -- who inserted the Disney carveout -- and Rep. Anna Eskamani who wants to get him on record explaining why. Ingoglia flat out admits that it's to protect Disney, though his argument is so hilariously dumb it's hard to believe it's real. He argues that they need to protect Disney+ reviews (Disney+ doesn't currently have reviews) and that it shouldn't apply to other sites, because Disney creates its own content. This ignores, of course, that the entire bill is about the moderation of 3rd party content (such as, uh, reviews, which are not created by Disney). It's almost as if he doesn't understand what all of this means, and is just making sure to do a favor to Disney, just because.

Filed Under: 1st amendment, content moderation, florida, injunction, section 230, theme parks
Companies: ccia, facebook, google, netchoice, twitter