22 November 2021
In a landmark lawsuit for online freedom of expression rights and technological innovation, IP Justice filed an Amicus Curiae legal brief with the 11th Circuit Court of Appeals on 15 November 2021 asking the court to uphold a lower court’s injunction against the enforcement of Florida’s regulations over the operation of online social media platforms. The lawsuit is sure to set important legal precedent on the application of the First Amendment on the Internet and the ability of states to regulate social media platforms.
The Florida state law at issue, SB 7072, was passed after the former US president was kicked-off from social media platforms including Twitter, FaceBook, and YouTube in January 2021 for violating their terms of service policies.
Florida’s governor and state legislature responded to that deplatforming by passing a state law that made it illegal for social media platforms to ban politicians. Among other onerous restrictions regarding deplatforming and the treatment of user speech, the Florida law also made it illegal for platforms to moderate speech posted by or about politicians and large media companies to social media sites.
SB 7072 raised numerous concerns about its impact on online free speech and innovation; and as it was about to take effect, a lawsuit was filed against the state of Florida to challenge the new law and prevent it from going into effect.
The lawsuit, filed by two organizations who represent the interests of Internet companies, NetChoice, and the Computer and Communications Industry Association (CCIA), asked the court to invalidate the state law on the grounds that it is an unconstitutional violation of the free expression rights of digital platforms and Internet users.
In June of this year in the case, NetChoice, CCIA v. Moody et al, a federal district court judge issued a preliminary injunction against SB 7072 from taking effect, ruling that it is unconstitutional under the First Amendment and preempted by federal law. The State of Florida appealed that ruling to the 11th Circuit, where the case is currently pending and being briefed.
In its amicus brief supporting the lower court’s injunction, IP Justice argued that Florida’s new law violates the First Amendment in several ways, including the free expression rights of Internet companies by compelling them to host objectionable speech, or speech that violates their terms of service, or otherwise conflicts with the companies’ policies. The international civil liberties organization, IP Justice, also argued that SB 7072 violates the free association rights of Internet users guaranteed by the First Amendment because it forces users to associate with and be exposed to objectionable content from politicians and large media companies against their wishes.
IP Justice also contended that a US federal law, Section 230 of the Communications Decency Act, protects social media company’s right to moderate their platforms and specifically preempts states from regulating online speech as Florida did with SB 7072.
IP Justice’s brief additionally argued that state regulations over online speech like SB 7072 significantly harm the growth of the Internet sector of the US economy, which relies on Section 230’s liability protections to host user generated content. It further said that the SB 7072 also violates the equal protection clause of the US Constitution since it specifically exempted large Florida theme parks Universal Studios and Disney, from its application, treating citizens differently.
IP Justice’s amicus brief was authored by Robin Gross, IP Justice’s Executive Director, and Board Member Allonn Levy, an attorney with Hopkins and Carley in San Jose; both California attorneys are also members of the 11th Circuit Bar.
Oral argument by the parties before a panel of 11th Circuit judges will be scheduled in the coming months in the appeal. Many other states including Texas have followed Florida’s lead and passed similar social media regulations, aiming to regulate political speech on the Internet in violation of free expression guarantees of the First Amendment.
Which ever side loses at the 11th Circuit will likely appeal to the US Supreme Court, where the case is expected to set national legal precedent over states’ ability to censor the Internet and regulate user interactions on social media.
Contact IP Justice Executive Director Robin Gross via email to Robin@ipjustice.org for additional information or comment on the amicus brief or the underlying legal case NetChoice, CCIA v. Moody.