Florida, Texas and Free Speech: Whose Right is it Anyway?

By Michelle Nestor

                In an age where social media is a cornerstone of expression, it is imperative that free speech be protected. But when do rights to free speech conflict with each other and when can they be regulated? Florida Governor Ron DeSantis took a stance on the issue and signed Senate Bill 7072 into law in May of 2021.[1] The bill sought to punish large social media companies for censorship by enabling “the state to fine large social media companies $250,000 a day if they remove an account of a statewide political candidate, and $25,000 a day if they remove an account of someone running for a local office.”[2] Within a month, the bill was challenged by NetChoice, a lobbying firm for some of the biggest social media companies to exist, like Facebook and Twitter, and the Computer and Community Industry Association (CCIA).[3] Ultimately, U.S. District Judge Robert Hinkle granted a preliminary injunction halting the law, deciding that the Plaintiff would likely win on a First Amendment claim in court as his reasoning.[4]

The State appealed the ruling, landing the case in Appellate Court. The court, sitting in a three-judge panel, opted to uphold the ruling, holding the legislation is a First Amendment violation.[5] Circuit Judge Kevin Newsome made it clear even the largest social media companies are private actors protected by the First Amendment. [6]

What does this mean moving forward? The Florida bill has paved the way for other states to try their hand at similar bills. In September of 2021, Texas Governor Greg Abbott signed HB20 into law.[7] The law, similar to Florida Senate Bill 7072, stated that social media companies operating in the state of Texas may not censor users and their expressions, or the ability to see another user’s expressions.[8] NetChoice and the CCIA challenged the Texas bill and the District Court granted a preliminary injunction, temporarily preventing the bill from taking effect.[9] The Appellate Court lifted the injunction.[10]

On further appeal, this case was brought before the Supreme Court, where the Justices upheld the preliminary injunction with a 5-4 decision.[11] Chief Justice Roberts and Justices Kavanaugh, Barrett, Breyer and Sotomayor reinstated the injunction with no supporting opinion.[12] Justices Thomas, Alito, Gorsuch and Kagan dissented.[13] Justice Alito’s dissent argued it was much too early for the court intervention because Plaintiffs could not prove they would win on the merits due to the “novelty” of social media business models.[14] Justices Thomas and Gorsuch joined the dissent. Justice Kagan did not join nor provide in depth reasoning, but agreed that it was too early to intervene and the law should have been allowed to go into effect.[15]

Texas Attorney General Ken Paxton argues HB20 doesn’t violate the First Amendment because social media companies provide platforms for news and information; he furthers his argument by comparing social media to telegraph and telephone companies relative to the spread of news and communication.[16] Attorney General Paxton grounds his argument with the thought that these companies are “common carriers”, which means they are subject to government regulation.[17]

This issue will likely be a hot topic for litigation for years to come, weighing the First Amendment rights of individuals and companies and searching for ways to allow regulation of social media conglomerates.[18] For now, the law remains at a standstill. With the law blocked by the temporary injunction, NetChoice v. Paxton will have to make its way through the court system for a final ruling.[19]

[1] Governor Ron DeSantis Signs Bill to Stop the Censorship of Floridians by Big Tech, Ron DeSantis 46th Governor of Florida (May 24, 2021), https://www .flgov.com/2021/05/24/governor-ron-desantis-signs-bill-to-stop-the-censorship-of-floridians-by-big-tech/.

[2] Judge Blocks Florida Law Aimed at Punishing Social Media, Associated Press (June 30, 2021), https://apnews.com/article/florida-business-travel-lifestyle- laws-0c80db388feb83a96f2930128fd087fd.

[3] Id.

[4] Id.  

[5] An Appeals Court Finds Florida’s Social Media Law Unconstitutional, NPR (May 23, 2022), https://www.npr.org/2022/05/23/1100831545/appeals-court-f lorida-social-media-law-unconstitutional-desantis.

[6] Id.

[7]John Villasenor, Texas’s New Social Media Law is Blocked for Now, but That’s Not the End of the Story, Brookings (Dec. 14, 2021), https://www.brookings. edu/blog/techtank/2021/12/14/texas-new-social-media-law-is-blocked-for-now-but-thats-not-the-end-of-the-story/.

[8] Id.

[9] Id.

[10] Amy Howe, Divided court blocks Texas from enforcing social media law, SCOTUS Blog (May 31, 2022, 7:18 PM), https://www.scotusblog.com/2022/05/divi ded-court-blocks-texas-from-enforcing-social-media-law/.

[11] Id.

[12] Id.  

[13] Id.

[14] Id.  

[15] Id.

[16] Id.  

[17] Id.

[18] Id.

[19] Id.