More than three years after Gov. Ron DeSantis and the Republican-controlled Legislature approved a law to place restrictions on social-media platforms, Florida says a First Amendment fight about the law should go back to a federal district judge for a closer look.
Attorneys for the state, in a document filed Monday at the 11th U.S. Circuit Court of Appeals, said a recent U.S. Supreme Court decision requires a more-detailed analysis by a district judge about whether the law should be blocked. The state pushed back against tech-industry groups that contend briefs should be filed, at least initially, at the Atlanta-based appeals court.
The arguments are the latest steps in a high-profile lawsuit that started in 2021, after DeSantis and Republican lawmakers placed restrictions on large social-media platforms such as Facebook and YouTube. That included preventing platforms from banning political candidates from their sites and requiring companies to publish — and apply consistently — standards about issues such as banning users or blocking their content.
The law seeks to regulate social-media platforms that have annual gross revenue of over $100 million or more than 100 million monthly active users. Companies could face steep penalties for violating the restrictions.
The law passed after Facebook and Twitter, now known as X, blocked former President Donald Trump from their platforms after Trump supporters stormed the U.S. Capitol on Jan. 6, 2021.
The tech-industry groups NetChoice and the Computer & Communications Industry Association challenged the constitutionality of the law. U.S. District Judge Robert Hinkle in 2021 issued a preliminary injunction to block the law (SB 7072) on First Amendment grounds, and the 11th U.S. Circuit Court of Appeals upheld most of Hinkle’s decision.
But on July 1, the Supreme Court vacated the appeals-court ruling and sent the lawsuit back for further consideration. The Supreme Court did not resolve the constitutional issues but said the 11th Circuit and another appeals court in a similar Texas case did not properly consider the “facial nature” of challenges to the laws, a critical element in deciding whether they met constitutional muster.
“To make that judgment, a court must determine a law’s full set of applications, evaluate which are constitutional and which are not, and compare the one to the other. Neither court performed that necessary inquiry,” Justice Elena Kagan wrote in the main opinion.
Now, Florida and the industry groups are tangling about how the case should move forward.
Attorneys for the industry groups, in an Aug. 2 motion at the 11th Circuit, argued that briefs should be filed “so that the parties can address the import of the Supreme Court’s decision, whether this (appeals) court can resolve the facial challenge on this record or whether a remand to the district court is necessary, and if so, whether the preliminary injunction should remain in effect pending any necessary further proceedings.”
“Indeed, the Supreme Court’s decision expressly contemplates additional proceedings in this (appeals) court to determine in the first instance whether SB 7072 prohibits a substantial amount of protected speech relative to its plainly legitimate sweep,” attorneys for the groups wrote.
But in a response filed Monday, lawyers in Attorney General Ashley Moody’s office and with the firm Cooper & Kirk PLLC contended that the case should go back to district court. It said the state has “been enjoined from enforcing SB 7072 in its entirety for three years despite no showing in the district court that NetChoice is likely to succeed on its facial challenge, as that standard is properly applied.”
The response said the record in the case is “not adequate to assess the merits of NetChoice’s request for an injunction.”
The state’s lawyers wrote, for example, that a court needs to determine which platforms would be subject to the restrictions, based on the revenue and user thresholds included in the law. Also, they said determinations about potential First Amendment violations would require findings about “different levels of editorial choice” involved in each platform’s various functions.
