Thread by @AriCohn

Motion for preliminary injunction GRANTED. Thoughts to follow, but this does not portend well for Florida.

https://twitter.com/AriCohn/status/1409563991974817800

The court analyzes preemption under 230(c)(2)(A), but doesn't touch (c)(1). Normally this would bother me, because that's not how #Section230 works. But if you read it, Hinkle doesn't really decide between the 230 interpretations; this reads more like an "even if FL is right"

Hinkle was obviously not swayed by Florida's attempt to brush off platforms' curation as meaningless and expressionless. He seems to understand that those functions are vital for their products to be usable.

Remember that time when I said Hinkle wasn't impressed with the whole "social media platforms violate the First Amendment" argument?

He remains...unimpressed.

And how many times have I written basically this exact paragraph?

I'd disagree with Hinkle that 99% of content posted on social media is "invisible" to platforms for First Amendment purposes, but in any event, he gets this right: we're talking exactly about the cases at the margins, and Florida's intent is to control editorial discretion here

Surprisingly brief analysis of FAIR & PruneYard; I'd go further noting the contextual differences that make those cases not analogous, but note that Hinkle concludes that SB 7072 comepls platforms to change their speech by altering how they arrange and present speech. Very broad!

If the court is (rightly) convinced that how a platform chooses to display or organize content is First Amendment activity, that makes most any state regulation of content information a no-go. And that's how it should be.

Political showboating may get you the headlines, but it doesn't often get you a statute that holds up in court, @GovRonDeSantis.

Really glad to see speaker discrimination actually getting its due here.

Hinkle also very not impressed by Florida's treatment of the theme park exception. It was clear that Florida's strategy all along was to put it in there and tell the court it should just strike that part down instead of the statute. Hinkle isn't buying the ticket they're selling.

This here says it all. This is just a preliminary injunction decision, but it is exceedingly difficult for the government to come back from this and it rarely happens, expecially in the First Amendment world. It is a near-certain death knell to the constitutionality of a statute.

But if you need more convincing, Hinkle would toss it under intermediate scrutiny too. If Florida wants to save this law, it's going to have to pray for a VERY sympathetic 11th Circuit panel because it's looking grim.

Vagueness was never the primary argument, so this is not at all bothersome, and given the fact that Hinkle had two days to rule and found so strongly against 7072 on other grounds, there was literally no need to open this can of worms.

Note that Judge Hinkle didn't even bother to address common carriage. From my read, and his reference at argument to common carriage as an "analogy" for regulatability, he doesn't think it matters. No matter what you call it, he thinks it violates the First Amendment. He's right.

(that should read "content moderation" not "content information")

Here's the thing, though: whether it's cases on the margin is also irrelevant. Because what is on the margin is a wholly subjective function *of* editorial discretion. You simply could not write a law that would survive because we're talking about judgment calls.

There are things I would have worded differently or treated more thoroughly, but remember:

(a) This was all only ever a setup tor the 11th Circuit, and

(b) Hinkle had only two days to rule. You could wait 8 months for a motion ruling 1/3 the length.

I'm not pressed. It's a win