Judge Slams ‘Poorly Drafted’ Florida Social Media Law at Argument

A federal judge chided a Florida counsel at virtual oral argument Monday on the state’s law regulating social media regulation, asking “if you've ever dealt with a statute that was more poorly drafted.” U.S. District Court in Tallahassee Judge Robert Hinkle had a laundry list of questions for the state counsel. He plans to rule Wednesday on a preliminary injunction against the law that would otherwise take effect Thursday (see 2106250028).

Hinkle had many more questions for Florida counsel Brian Barnes than for internet industry attorneys challenging the law at the 2-1/2-hour argument. At one point during the state’s argument, the judge paused to refer to a list of things he “wanted to ask about.” He ticked off several hypothetical questions about whom the law would cover and how it would apply in different circumstances. “Seems to me that you can only make sense out of this statute if you know what the legislature must have meant, not what it said,” commented Hinkle between two such questions. “That's a hard argument in Florida,” where the Supreme Court says to “just read the words.”

Hinkle wondered aloud if the law would allow a “bad guy” seeking to sexually exploit children to opt out of the site censoring or deprioritizing his posts. Barnes said the law allows only viewers, not posters, to opt out of prioritization. Hinkle questioned whether the law makes a clear distinction as it defines only users: "How is my hypothetical bad guy not a user?” Hinkle said he couldn’t find anything in the law that gives the user who does want content prioritized to insist on it if another user opted out of prioritization.

​​​​​​​Hinkle asked why the law applies to CBS but not ABC, which is owned by Disney, an entity exempted with other Florida theme park owners through a late amendment to the law. Barnes said he didn’t think theme park owners had social media platforms. Hinkle returned that ABC allows comments on its site and might qualify, but Barnes insisted the law is focused on big social networks.

​​​​​​​If the court thinks the theme park exemption is problematic, strike that part from the law and keep the rest, said Barnes. Asked by Hinkle why he should strike the exception rather than the full law, Barnes advised the court to infer what the legislature would have wanted. The lawyer said he doesn’t think passage of the whole law turned on passage of the carve-out. "Everybody who saw this had to know that this was a major constitutional issue,” but they still carved out certain companies, responded the judge: Yet Florida wants Hinkle to infer legislators wanted to include ABC even though they voted to keep it out.

​​​​​​​Hinkle asked if the law allows a social media site to append a disclaimer to a user’s post, for example to flag it as misinformation, similar to how a college can legally post a sign near a military recruiter on its campus that disapproves of an anti-gay policy. Barnes said a website can post a disclaimer at the top of its homepage but not attach it to a specific post under the law.

Barnes suggested a net neutrality hypothetical to ask the other side: “Let’s say AT&T decides to exercise its editorial judgment by blocking internet users’ access to Facebook. Does AT&T have a categorical First Amendment right to exercise its editorial judgment that way?” If plaintiffs are correct there’s not a lower First Amendment scrutiny for common carriers, “then it seems to me that the” U.S. Court of Appeals for the District of Columbia got it wrong in its 2016 net neutrality decision in USTelecom v. FCC, the Florida lawyer said.

​​​​​​​During plaintiffs’ presentation, Hinkle said government can more extensively regulate phone services, and said some social media providers “do provide a little bit of that service” with messaging services. The judge asked industry challengers if the government can at least regulate that part in a way that’s more like phone companies than newspapers. Hinkle also asked if plaintiffs weren’t asking for immediate relief from antitrust provisions in the law, though he said later there wouldn’t be basis for that part if the rest of the law fell.

The law "directly suppresses protected editorial speech" and advances no valid government purpose, argued attorney Brian Willen for NetChoice and the Computer and Communications Industry Association. It’s overly broad, badly written and “blatantly unconstitutional,” he said. Social websites are information services that are nothing like common carriers, and the FCC has said telecom service rules don’t apply even if the site has messaging capability, Willen said. The law’s antitrust aspects aren’t the plaintiffs’ focus but are problematic with the rest of the law, he said.