State of Florida Appeals Ruling Against Anti-Deplatforming Law: Initial Conclusion Is That Law Violates Freedoms of Speech and of the Press

12 Pages Posted: 20 Jun 2022

See all articles by Hannibal Travis

Hannibal Travis

Florida International University College of Law

Date Written: Dec 20, 2021

Abstract

“Deplatforming” and “demonetization” of social media and e-commerce accounts are recurring targets of free speech advocates, fans of “remix culture,” critics of military occupation and imperialism, and those on the political right who complain of Big Tech’s political biases. Lexico.com, powered by the Oxford English Dictionary, defines deplatforming as: “The action or practice of preventing someone holding views regarded as unacceptable or offensive from contributing to a forum or debate, especially by blocking them on a particular website.” On May 2, 2021, Florida’s Republican governor, Ron DeSantis, signed a “first-of-its-kind” law to regulate deplatforming, particularly of political candidates and “journalistic enterprises.”

In late May 2021, NetChoice, LLC and the Computer & Communications Industry Association sued several Florida officials, notably Florida’s Attorney General Ashley Brooke Moody. The suit, filed in federal court in northern Florida where the State of Florida’s capital is located, sought a quick ruling that the law violated the First Amendment to the United States Constitution as applied to the State of Florida by the Fourteenth Amendment, as well as the Constitution’s Commerce Clause and a law enacted by Congress pursuant to it, the Communications Decency Act of 1996, 47 U.S.C. § 230. The United States District Court for the Northern District of Florida agreed with the Big Tech companies that the Florida law failed First Amendment scrutiny, conflicted with a federal statute designed to encourage removal of offensive speech, and was hopelessly ambiguous and imprecise. Further, the court agreed with NetChoice that the Florida law conflicted with the Communications Decency Act, and had to give way under the Supremacy Clause of the Constitution.

In July 2021, the Florida officials filed their notice of the state’s intent to appeal the injunction to the United States Court of Appeals for the Eleventh Circuit. It seems likely that the state will press its theory that under Supreme Court case law, state governments and even federal agencies may require private enterprises to open up their facilities to speakers with which they disagree, even vehemently. The theory is based largely on Supreme Court case law, including Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980), and Rumsfeld v. FAIR, 547 U.S. 47 (2006).

Keywords: Internet platforms, social media, deplatforming, anti-deplatforming legislation, journalistic enterprises, viewpoint discrimination, access to private property, official encouragement of private censorship

JEL Classification: K10, K11, K20, L43

Suggested Citation

Travis, Hannibal, State of Florida Appeals Ruling Against Anti-Deplatforming Law: Initial Conclusion Is That Law Violates Freedoms of Speech and of the Press (Dec 20, 2021). Available at SSRN: https://ssrn.com/abstract=4136787 or http://dx.doi.org/10.2139/ssrn.4136787

Hannibal Travis (Contact Author)

Florida International University College of Law ( email )

11200 SW 8th St.
RDB Hall 1097
Miami, FL 33199
United States

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