Thread by @AkivaMCohen

Hey, #LitigationDisasterTourists, some good breaking news out of the 11th Circuit, which just absolutely gutted Florida's social media law today

The panel was Newsom (Trump appointee), Tjoflat (Ford!), & Carnes (Bush I), so that's three GOP appointed judges - and Newsom had the opinion. It's always nice to see the difference between a GOP-appointed judge and a GOP judge.

Let's roll through this really well written opinion, which does God's work of addressing some of the lunatic right-wing talking points for why this version of government censorship ought to be OK, really. (Just imagine he's screaming "Pruuuuuuuuneyaaaaaard!")

They start with an intro that nicely addresses the "but social media is different" argument that right-wingers (I'm not going to call them conservatives) like to trot out, with the perfect answer: So what?

No, seriously: Yes, it's new tech. Yes, it's got a huge audience. Neither of those things makes the government suddenly able to regulate speech. The First Amendment wasn't predicated on "well, private speech isn't a big deal, really, so just let em talk, what's the harm?"

I love this paragraph, because the argument that "big tech oligarchs" are "silencing speech they disagree with" is part of what makes these bills so clearly DOA. Don't tell me you can't recognize what they're doing as speech when you also say you know its intended meaning

Gonna skip the "what is social media" section, since if you're reading these tweets, I'm guessing you know. But a few nice touches:
1) Including definitionally ideological platforms
2) Recognizing how much right wing rhetoric on this tries to obscure
3) "Not just dumb pipes"

And of course, "not just dumb pipes reflexively transmitting data" is exactly what gets the right so mad about all this. How dare these private enterprises pick and choose what they want to say and how.

But that's exactly why the government can't compel them here.

If you want a version of Twitter that's just a dumb pipe ... start one. Market it. Make it grow.

But most users don't want that and won't go there if you did.

"Come to FreezePeachSocial, we've got porn and nazis for days" isn't, it turns out, the world's best slogan

You know, if you're signing a bill that you later want to argue doesn't have any free speech implications at all, you might want to avoid admitting that you're doing it to keep private citizens from presenting a "narrative" that they want to present

Not in so many words, thanks for clarifying, Ron.

No, literally, that's pretty much what Newsom is saying here, while also pointing out that it's not exactly a carefully drafted piece of legislation

There's actually no reason at all to include this point in the background - it's got no relevance to the decision - except for the fact that these judges clearly (and correctly) think that legislating to punish criticism of government is a big fucking problem and want to say so

Back, sorry

The court then breaks the bill's provisions down into three categories: moderation restrictions, disclosure obligations, and user-data requirements. Worth a look but we're not getting that granular in this thread

After discussing that the state lost in the District Court, the panel sums up the parties' arguments

OK, this is a neat bit of sleight of hand, but I don't think it works. To unpack a bit - courts are not supposed to strike down laws as unconstitutional if there is some other basis to reach the same result. The court here is arguing that "it's preempted" doesn't count, since ...

preemption is itself a constitutional doctrine. That's cute, but of the "so sharp you'll cut yourself" variety. The doctrine of constitutional avoidance basically says "don't engage in constitutional interpretation unless you absolutely have to"; applying preemption doesn't

require constitutional interpretation - not generally, and certainly not in this case. There's no argument that preemption isn't a thing, the only question is whether a particular federal statute preempts a particular state law, and determining that is statutory interpretation.

Going to indulge myself in a bit of a prediction here: SCOTUS reverses and remands with instructions to engage in the preemption analysis before reaching constitutional questions.

Now we get to the meat of the opinion, and a spiffy summary up front: Only some of the disclosure provisions survive, nothing else.

Every last bit of this should be obvious, and should be vigorously defended by anyone concerned about freedom of speech.

Instead, the right has twisted itself into a pretzel in an attempt to say that THIS version of government censorship would be good, actually

Yes, yes, I know. Social media companies are a unique threat, because they control so much speech!

You know what else is a threat, guys? Bigots teaching people that gays or Jews or Black people or [insert scapegoat here] are subhuman or a threat or need to be fought.

But guess what? We've long since decided as a society that "well, let's just have the government respond to that threat by limiting speech" is not an option on the table. That tool isn't in the tool kit. So "but look at the threat?" So fucking what? Find a different solution

And yes, that applies to the folks who want to pass "hate speech" laws.

"How much of a threat is it" isn't a metric that matters.

Though I will say this: it's pretty fucking telling if, *assuming you're the type of guy who thinks "how much of a threat is it" should matter,* you see "Twitter won't let me post that Biden stole the election" as more of a threat than "dude telling his followers gays are evil"

Just ... examine your priorities, ok?

Anyway, back to the opinion: given that predicate, the argument that these laws shouldn't face first amendment scrutiny is deader than Alex Berenson's sense of shame

Next, a pretty clear summary of 4 key "editorial discretion" cases, including basic rules like "no, that's not reserved for newspapers", "yes, that covers how you present other people's speech" and "that means you get to discriminate against gay people if you want to"

Here's the rest of the discussion of Hurley (the homophobe case), which is particularly important for expressly saying "the decision not to carry particular speech you don't want to be associated with is clearly first-amendment protected"

Next they move on to the expressive conduct cases: basically, if you're doing something that conveys a message - like burning a draft card, erotic dance, or moderating content you disapprove of - laws regulating that conduct are subject to 1A scrutiny.

And, of course, since the entire rationale for the law is "the Big Tech oligarchs are conveying a narrative we dislike and expressing their disapproval of things we want said", this one is a true slam dunk

Again, a spin through the relevant precedents makes this crystal clear

The court then straightforwardly applies those precedents to content moderation and concludes that content moderation is obviously first amendment protected

The roadmap on that should be so clear that I'm not going through paragraph by paragraph from the order, but again I just love this so goddamn much

Then we get the "but what about all the people I DIDN'T murder? Nobody ever talks about those people" argument from Florida, which the panel correctly laughs out of the room

Now, we finally get to Florida's inevitable reliance on Pruneyard

If you're wondering what Pruneyard is and why it's so often and so wrongly cited in this context, spend some time in this subthread and then come back - I can't do this all over again

https://twitter.com/AkivaMCohen/status/1473382784391655432

Anyway, away we go. Florida, like all "no really, this time we can censor" arguers (Trump, Berenson, Children's Health Defense, etc.), points to Pruneyard and Rumsfeld v. FAIR, and makes the even lamer "common carrier argument".

It does not go well

Yeah, no, seriously guys, Pruneyard has NO application to a social media site (which exists only to speak and facilitate speech) that says there's particular content it doesn't want to host. This isn't a close question

Next up is FAIR, which is a closer read, but still not on point precisely because "having a physical space" isn't itself expressive in the same way as "curating content" always is

It's hard for me to improve on Newsom's explanation here, so I'm not going to try

OK, it's midnight and we're on page 36 of 67 - gonna break here and finish up in the morning

The court next dismantles the argument that Florida's social media bill doesn't have 1A issues:

1) Yeah, it's speech guys
2) Confusion isn't needed, but also, people would perceive not deleting as a judgment that the speech is fine
3)SCOTUS already rejected your "theme" argument

OK, but what about the "common carrier" argument?

First of all, this footnote is wonderful. "We'll treat you like a common carrier, which means you've got the ability to exclude people who are obnoxious or whose messages are profane or indecent" doesn't seem like much of a victory even if the FSWs could get it (and they can't)

But also, the argument itself is hot garbage. The court correctly points out the way FSWs equivocate between "you're already a common carrier, so you have less 1A rights" and "we'll pass a law to MAKE you a common carrier, and take away your 1A rights"

The first of those is simply wrong on the facts, and we'll get there. The second is noxious, dangerous, and also incredibly stupid. The entire point of first amendment rights is that the state CAN'T just wave a legislative wand and take them away from people (or companies)

I mean, you're not going to avoid strict scrutiny by saying "well, first we passed a law that said 'this group has less 1A rights'" - you've just moved the scrutiny to that law that purports to strip them of their rights.

Anyway, they aren't common carriers. You know what Verizon's TOS (verizon.com/legal/notices/…) says about what content you can and can't send over their services? Nothing, because they're a common carrier and they don't police their users' content. Social media, on the other hand...

And no, the fact that the content management decisions are made after publication instead of before publication doesn't change that.

Also, SCOTUS happens to have made very clear that no, internet publishers aren't common carriers. And so did Congress.

Clarence Thomas's FSW musings aside, the argument that Facebook and Twitter are common carriers just doesn't have a leg to stand on

Oh

Clarence Thomas, meet Clarence Thomas

OK, pausing here because I have a meeting and I want to read these cites

The court then spends some more time directly rejecting the "common carrier" argument, probably because it features so strongly these days. Bottom line: market success doesn't cost you first amendment rights

With that predicate out of the way, the Court turns to the real question: Does the Florida law survive 1A scrutiny?

Not really, no, though some of the disclosure rules will.

The exception is probably correct, absent some specific showing that preserving user data is burdensome

Which oh, hey, Newsom specifically notes (always a nice feeling when that happens)

On to the scrutiny. First, the court says even where the government announces that it is passing a law SPECIFICALLY to restrict particular viewpoints, the court can only look at the text of the law to decide whether it's really viewpoint-based.

I think they got this very wrong

Two reasons for that, both of which are touched on in the text (and here's the end of this section).

First, the distinction between the ability to look at animus in the free exercise context but not the free speech context doesn't seem to have any principled support

Both freedom of religion and freedom of speech are 1st amendment rights. Why would we allow "look at the motivation, not just the text" in one but not both contexts?

Note also that "look at the motivation" was applied to rulings impacting *majority* religions, too, in

Masterpiece Cake Shop, where SCOTUS reversed the finding that Jack Phillips had violated Colorado anti-discrimination law on the basis that it was driven by discriminatory animus against Christian beliefs.

More fundamentally, the legislative finding that the moderation has been "unfair" is in the text and makes crystal clear that the legislation was viewpoint based; "unfair" means "we disagree with the substantive moderation decisions" and that's purely viewpoint based

The best argument against that is to say "unfair" means "inconsistent" - but the claim that moderation decisions have to have a particular sort of consistency is itself a viewpoint. Flat-out, I think they got this part wrong.

Since they're not applying strict scrutiny to the law as a whole, they need to decide what level to apply where. Summary: Moderation rules get strict scrutiny or intermediate scrutiny. Disclosure rules get Zauderer Scrutiny.

None get "normal" scrutiny

What are those?

To survive strict scrutiny, a law must be narrowly tailored to addressing a compelling state interest. I.e. the least restrictive way to accomplish an extremely important state goal.

For intermediate scrutiny, the law has to be *substantially related* to an important state interest.

For both of these, the burden of proof is on the government

Under Zauderer, the state can compel commercial speech if the speech is reasonably related to the state's interest in protecting deception of customers (it's basically intermediate scrutiny but with the validity of the state interest as a given)

And "normal" scrutiny? That's not a thing. Rudy made it up when, during one of the election cases, a judge asked him what level of scrutiny he should apply and Rudy had no fucking clue what that meant.

Finally, the application - only the other disclosure requirements survive

Content moderation, and this is quite the smack down: these fuckwits bet everything on the idea that there were no first amendment implications at all, because they know there's neither a strong state interest nor narrow tailoring

Oops, broke the thread. Here's the next tweet

https://twitter.com/AkivaMCohen/status/1529144260343103490

The panel goes out of its way to say that the supposed state interest in preventing platforms from moderating is not even a legitimate one

The state likewise has no interest in forcing people to speak consistently, and even if it did, these provisions aren't narrowly tailored to anything.

Hell, it would literally require YouTube Kids to carry softcore porn

Basically, platforms need to publish content moderation standards, notify users of rule changes, make view counts available, and inform users of any free advertising they provide candidates.

Not particularly oppressive (the standard can literally be "our subjective judgment")

In fact, pretty much all platforms already do the first two.

Last, we get to the preliminary injunction. Basically: we've found likelihood of success that this shit is unconstitutional, and First Amendment violations are ALWAYS irreparable harm, so of course you get an injunction

Look, there's a reason the fifth circuit panel that stayed the injunction against Texas's law didn't issue an opinion justifying that decision - because it's inexplicable and nakedly political.

Anyway, that's the end of this opinion. Hope you enjoyed