GAINESVILLE, Fla. — In a major free speech case, a federal appeals court panel will hear oral arguments Thursday on whether Florida can implement parts of a controversial new law that would prohibit social media companies from banning political candidates’ accounts.
The case being considered by a three-judge panel in the 11th U.S. Circuit Court of Appeals has become a conservative rallying cry, with a host of Republican-led states, including Texas, Alabama and South Carolina, filing briefs in support of Florida’s appeal.
The court hearing comes days after Tesla CEO Elon Musk struck a deal to purchase Twitter for $44 billion. Musk’s purchase was widely expected to open the way for banned accounts to be reactivated. The billionaire entrepreneur said he hopes his worst critics will remain on the service “because that is what free speech means.”
Republicans have decried what they described as restrictions by technology companies to win support among conservative voters. Florida passed its social media law last year after former President Donald Trump received a two-year suspension from Facebook and was permanently banned from Twitter for repeating false claims that the 2020 election outcome was fraudulent.
“If we're able to get a positive ruling, we will have been the first state in the country to do anything to hold big tech accountable,” Gov. Ron DeSantis said last week.
The three appeals court judges for this week’s hearing include Kevin C. Newsom, appointed by Trump in 2017. The others are Ed Carnes, appointed to the court by President George H.W. Bush in 1992, and Gerald Bard Tjoflat, a former federal trial judge in Florida who was appointed to the appeals court by President Gerald Ford in 1975.
The Republican governor, who is running for re-election this year and hasn’t ruled out a bid for the GOP presidential nomination in 2024, called the legislation the “big tech accountability and transparency bill.”
Legal experts say Florida’s appeal must overcome several substantial hurdles, such as convincing a panel of federal judges the law does not violate the First Amendment and complies with existing federal law, such as Section 230 of the 1996 Communications Decency Act, which gives wide latitude to how social media companies operate their platforms.
This week’s court hearing will take place in Montgomery, Alabama. It follows a trial judge’s earlier decision to block portions of the law, known as Senate Bill 7072, in June just before it was to take effect.
At the time, U.S. District Judge Robert Hinkle in Tallahassee said the plaintiffs, NetChoice and the Computer and Communications Industry Association – backed by Facebook, Twitter and other technology companies – would likely succeed in arguing the law violated the First Amendment.
Another federal judge blocked a similar Texas law in December 2021 after NetChoice and the Computer and Communications Industry Association sued. The state of Texas appealed, and that case is now before the Fifth U.S. Circuit Court of Appeals.
It wasn’t clear how Twitter’s sale might affect the ongoing legal fight. DeSantis and other prominent Republicans openly supported the purchase by Musk as a way to rein in “big tech” censorship.
“All he’s doing is [trying] to liberate the platform so that people are able to converse and are able to really hold some of these people accountable for their lies,” DeSantis said about Musk earlier this month.
In legal filings in the Florida case, attorneys for NetChoice scathingly rebuked portions of the social media law, most notably a provision that would allow the state to fine companies that suspend or ban political candidates’ accounts.
A University of Florida law professor, Clay Calvert, said Florida’s and Texas’ appeals largely hinge on whether the government can legally compel private social media companies to publish content produced by political candidates.
“This raises an enormous question regarding the ability of the government to intrude into the editorial control and discretion of private social media platforms,” Calvert said. “The First Amendment protects not only an individual or businesses’ right to speak, but it also protects the right not to speak.”
Despite research that shows conservative-leaning social media content draws more reader interest than liberal content, DeSantis and Florida Attorney General Ashley Moody said the law was needed to combat widespread censorship of conservative viewpoints on social media.
Legal experts are skeptical of the state’s claim that the social media law complies with existing federal regulations.
Loyola Law School Professor Aaron Caplan said Congress passed the 1996 law giving website operators the right to take down content that violated a company’s terms of service.
“Congress said, ‘If you take down content, nobody can sue you,’” Caplan said. “It’s not a breach of contract, it’s not a copyright infringement.”
In court filings, attorneys representing NetChoice said Section 230 affords social media companies the right to regulate hateful or otherwise offensive speech – a position Calvert said is supported by many First Amendment scholars.
“Social media sites like Twitter and Facebook do exercise editorial control and autonomy via their terms of service,” Calvert said. “They are making editorial control judgments, and they don’t have to comply with the First Amendment because they’re private; the First Amendment protects us from government censorship.”
In 2020, PewResearch found that 90% of Republicans surveyed said social media companies likely censored political content, compared with 59% of Democrats.
Earlier this month, a study by the Massachusetts Institute of Technology found that more Republicans than Democrats had their Twitter accounts suspended in the six months after the 2020 presidential election: 35% of Republican accounts examined received a suspension compared with 7% of Democrats, according to the study.
“[Republicans] shared substantially more news from misinformation sites – as judged by either fact-checkers or politically balanced crowds – than the Democratic users,” study authors Qi Yang Mohsen, Mosleh Tauhid Zaman and David Rand wrote.
Twitter executives disputed that the company engages in viewpoint-based censorship. The company published internal studies in October that it said showed that its algorithm did not suppress conservative speech.
Musk has spoken out against Twitter’s banning of conservatives and some hope he may repeal Trump’s lifetime ban when he takes control of the company, although the former president said this week he’s not interested in rejoining.
If Florida were to lose its appeal, Moody could petition the Supreme Court to hear the case.
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This story was produced by Fresh Take Florida, a news service of the University of Florida College of Journalism and Communications. The reporter can be reached at walter.harwood@ufl.edu. You can donate to support our students here.