Fla. Reversal on Disney Carve-Out Shakes Up Social Media Case

An eleventh-hour amendment won’t help Florida overcome constitutional problems with its law making it illegal for social media sites to deplatform political candidates and requiring them to be transparent about policing, and could even help tech industry challengers' case, opponents of the law said Monday.

Gov. Ron DeSantis (R) signed a bill Friday to remove a controversial exemption for theme park owners like Disney, less than week before a Thursday-scheduled argument at the 11th Circuit U.S. Court of Appeals on a lower court’s preliminary injunction. The move removed one distraction from defensible parts of the law, said Del Kolde, Institute for Free Speech (IFS) senior attorney.

Critics of Florida’s original law had argued the exemption for companies like Disney underscored that the social media law was more about targeting certain Big Tech companies than protecting free speech. DeSantis removed the carve-out days after asking legislators to remove special districts and privileges for Disney in Florida in response to the company’s opposition to HB-1557, what opponents call the “Don’t Say Gay” law. FCC Commissioner Brendan Carr said the change will bolster the state’s legal case (see 2204210039).

Removing the exemption doesn't hurt challengers’ case about the law's unconstitutionality, emailed a spokesperson for one plaintiff, the Computer and Communications Association. “This attempt to carve Disney back in is pure politics and doesn't impact the already illegal law one way or another. We expect the court will toss out this law for violating" the First Amendment, which includes rights to speak and "not to be compelled to speak.”

“Since Florida has repealed the theme park exemption, Plaintiffs’ arguments related to that provision of the Act are moot,” Florida argued in a Friday letter to the appeals court. Florida’s attorney general office declined to comment Monday.

“The tech companies are almost certain to make the repeal an important part of their oral argument” because the Disney exemption was evidence for the companies’ argument “that the law was viewpoint discriminatory,” said Scott Wilkens, Knight First Amendment Institute senior staff attorney. The repeal “makes it even more clear that the purpose of the law is to punish social media companies for their supposed anti-conservative bias,” since it appears to be punishment for Disney taking a “supposedly liberal point of view on Florida’s 'Don’t Say Gay'” law.

Wilkens disagreed with Florida that axing the carve-out moots the subject. “The Disney exemption and the repeal are directly relevant to the motive behind the law,” said the lawyer. “The First Amendment cares about what the motive is behind statute.”

Dispensing with Disney’s exemption “allows the court to focus on more of the other issues,” said Kolde. IFS opposes “any kind of law that creates special classes of speakers,” including the law’s Disney exemption and special treatment for political candidates and news organizations, he said. The group filed a September amicus brief asking the court to cut those aspects while upholding the law’s other parts, including requirements that platforms disclose their content moderation rules and explain why certain posts are removed, and then follow their rules consistently. Social websites are different from news publications with editorial discretion, said Kolde.

It's tough to predict what the court will decide, said Kolde. “I don’t think the 11th Circuit has a particular reputation for being clearcut one way or the other.”

“If it strengthens the case at all, it at least shows that that law … would be enforced across the board,” said Information Technology and Innovation Foundation Senior Policy Analyst Ashley Johnson. “There’s not a seemingly arbitrary exception to it for companies that don’t even run social media companies.” However, the change is unlikely to weaken opponents’ constitutionality argument, she said. “It really just underlined DeSantis’ dissatisfaction … with Disney at the moment.” Johnson noted she has never seen a case “where a law is changed essentially in the eleventh hour.”

Social media companies have a First Amendment right to “freely decide who they associate with,” like any company, said Johnson. “That is backed up by years of court precedent” and “it would be a pretty significant departure for this law to be upheld.” Historically, it has been the 9th Circuit where tech companies have run “into the most issues trying to apply Section 230,” she said.

“Florida's reason for removing the carve-out is so transparently pretextual that I could see a court refusing to credit it,” said TechFreedom Internet Policy Counsel Corbin Barthold. “The carve-out might yet be held against them.” The 11th Circuit oral argument on case 21-12355 is scheduled Thursday at 9 a.m. in Montgomery, Alabama.

The 5th Circuit plans argument May 9 on a similar Texas law. The First Amendment doesn't give social media platforms "an absolute right to operate this abusive way,” Texas said in a Friday reply brief. The Supreme Court said in 1994's Turner Broadcasting v. FCC "the First Amendment 'does not disable the government from taking steps to ensure that private interests not restrict, through physical control of a critical pathway of communication, the free flow of information and ideas,'" said the state: Texas took “modest” steps toward that end.