State social media regulations return to Tallahassee after trip to U.S. Supreme Court

Following years of legal wrangling, including a trip to the U.S. Supreme Court, a federal judge said Tuesday that he remains flummoxed about what the Legislature meant to accomplish by trying to limit social media content moderation.

Northern District of Florida Judge Robert Hinkle said during proceeding in Tallahassee that he’s still “trying to figure out what the Legislature said, what it meant,” with the 2021 law. 

James Uthmeier inherited the case when Gov. Ron DeSantis appointed him Florida attorney general earlier this year. The legislation (SB 7072) came at DeSantis’ insistence in the immediate aftermath of Donald Trump’s banishment from social media platforms following the Jan. 6 attack on the Capitol by some of his supporters.

NetChoice and co-plaintiff Computer & Communications Industry Association represent a number of the biggest social media companies, including Facebook, Instagram, YouTube, Reddit, Apple, and Pinterest. 

Hinkle issued an injunction against enforcing the law in 2021.

Tuesday, during a hearing on the state’s motion to dismiss, Hinkle said, “I think I’m on my own” in deciding whether the law applies only to social media companies or to all websites.

Even the Supreme Court couldn’t figure out how to interpret the law, Hinkle said. That question became the theme of the hearing, with the judge saying he would decide what the law means and then order the parties to exchange evidence about to whom its provisions apply.

CCIA said the Legislature didn’t do a particularly clear job defining some elements of the law.

“We have done as much as we can to interpret this vague statute,” Stephanie Joyce, senior vice president for CCIA, told reporters following the hearing.

The law prohibits social media platforms from deplatforming any candidate for statewide political office. It allows the Florida Election Commission to fine platforms (defined as companies with annual gross revenues of more than $100 million or more than 100 million monthly active users) $250,000 per day and $25,000 per day for any candidate for other offices.

The state questioned whether CCIA and NetChoice were the correct plaintiffs to bring the suit, saying that neither is “actually regulated by the law” and that they lack any cause of action.

Ownership, structure, and financials of the tech companies could help the state refine its argument, its attorneys suggested.

‘Quintessential’

NetChoice’s lawyers insisted the case is “quintessential” in that it applies to a broad swath of its members. 

“Florida stated three years ago they knew exactly or very closely who was covered by the statute. Then, when it suited their litigation tactics, they decided they didn’t know what their own statute meant. As Judge Hinkle said today, it is quite remarkable that a state which is poised to lodge and impose monetary damages on companies now tells several courts they don’t know who was covered by the statute,” Joyce said. 

When DeSantis signed the bill in 2021, he said, “Maybe this isn’t as much the bearded tyrant in the military fatigues — you know, maybe the person is in pajamas on their laptop drinking a soy latte in Silicon Valley. You know what, when they have the power to silence you, you take it seriously.”

Authors of the bill included language asserting that “social media platforms have transformed into the new public town square,” while CCIA replies that its members are private concerns.

“There is nothing more violative of the First Amendment than a government entity telling a private actor what to say,” Joyce said.

Determining First Amendment protections for certain companies could come down to whether they are American or foreign-owned and what countries a company makes its executive decisions in.

Joyce argued the state is avoiding key legal question in the case.

“The question that Judge Hinkle from the bench opined on today, which is that the Supreme Court stated very clearly that the state of Florida and the state of Texas may not tell a social media website, for example, Facebook, what it can post. That is a question Florida is struggling strenuously to avoid,” she said.

Hinkle said he would respond to the motion to dismiss and hopes to “get to this pretty quickly.” The matters of the case change depending on future legislative action, too, Hinkle reminded the parties.

The state acknowledged First Amendment concerns with the law, but argued that the case as presented doesn’t implicate those concerns. 

The Texas case involves a similar law but has languished since April 17.