from the the-moody-reality dept
Remember a few years ago when both Texas and Florida passed laws trying to tell social media companies they couldn’t moderate political content? Those cases eventually made their way to the Supreme Court, where the Court (as it’s been known to do) kinda punted: sending the cases back to the lower courts on technical legal grounds, claiming that the plaintiffs, NetChoice and CCIA, had mistakenly filed the cases as “facial” challenges, rather than “as applied.” It’s not worth going into the legal weeds again about the difference here, especially since the ruling had tons of important and useful language making it clear that content moderation is protected by the First Amendment in the case dubbed “Moody” after Florida’s former Attorney General.
But, the two cases have continued to bounce around the courts over the past few years, and the district court in Florida has rejected both the plaintiffs and the state’s motions for summary judgment, but in doing so has again made some great arguments about how content moderation gets First Amendment protections. The case is still before Judge Robert Hinkle, who made the original ruling finding the law unconstitutional five years ago.
Now, after discovery, Hinkle is reviewing the amended complaint that tries to deal with Moody’s limits on “facial” challenges. He starts out by reinforcing that content moderation is obviously protected by the First Amendment:
Collecting third-party speech content into a single speech product is what social-media platforms do. As the Supreme Court said, the collection “is itself expressive, and intrusion into that activity must be specially justified under the First Amendment.” Id. The defendants’ contrary assertion was rejected in NetChoice I (this court’s preliminary-injunction order), and in NetChoice II (the Eleventh Circuit’s opinion affirming that order in relevant part), and in Moody (the Supreme Court’s opinion agreeing with the Eleventh Circuit in relevant part).
Florida tried to argue that because recommendation engines try to keep users on the platform, and that decisions are made by “algorithms” that somehow changes the equation. The court points out that this is technically illiterate, because humans still set the editorial guidelines:
The defendants say platforms decide which content to show any given user primarily based on the user’s viewing habits, showing the user the content most likely to keep the user on the platform longer. Perhaps so. See Moody, 603 U.S. at 735 (“The selection and ranking is most often based on a user’s expressed interests and past activities.”). And the defendants say this decision is made by algorithms, devoid of human involvement. Not so. Humans adopt the standards and guidelines, establish algorithms that incorporate them, and keep a great deal of content off the platforms on this basis, even though, as the defendants emphasize, the remaining content is organized to a substantial extent by algorithms based on a user’s viewing habits. This record establishes without genuine dispute that the six platforms specifically addressed in the plaintiffs’ motion have standards or guidelines that have a significant role in selection and organization of content. “And because that is true, they receive First Amendment protection.” Moody, 603 U.S. at 740.
Moody reiterated this point in discussing Texas’s similar legislation. The Court said the parties treated Facebook’s News Feed and YouTube’s homepage as the heartland applications of the Texas law—much as those and other platforms’ similar features are the heartland applications of the Florida law. See id. at 744. The Court said that at least on the record then before the Court, “the editorial judgments influencing the content of those feeds” were “protected expressive activity” that Texas could not “interfere with . . . simply because it would prefer a different mix of messages.” Id. (emphasis added). The Court said “influencing,” not “fully determining.” The record now before this court makes clear that editorial judgments of the six platforms addressed in the plaintiffs’ motion at least influence the content of their feeds. The First Amendment applies.
While Justice Barrett made some technically questionable statements in a concurrence about whether AI-driven algorithms might change the equation, Judge Hinkle says that even if she were right, it wouldn’t matter here:
But the defendants are plainly incorrect when they assert, in substance if not explicitly, that the First Amendment does not apply when there is mixed curation—some driven by human editorial discretion and some by algorithms or artificial intelligence. Responding to Justice Barrett’s concurrence, the Court said this case does not deal with “feeds whose algorithms respond solely to how users act online—giving them the content they appear to want, without any regard to independent content standards.” Moody, 603 U.S. at 736 n.5 (emphasis added). The Court continued, “Like them or loathe them, the Community Standards and Community Guidelines make a wealth of user-agnostic judgments about what kinds of speech, including what viewpoints, are not worthy of promotion. And those judgments show up in Facebook’s and YouTube’s main feeds.” Id. Justice Barrett joined that footnote.
And then the key point: the First Amendment protects content moderation. Full stop.
The unmistakable upshot is this: the First Amendment applies to mixed curation. The defendants’ contrary assertion is inconsistent with Moody, the many precedents discussed in Moody, and any coherent view of the First Amendment. This does not mean platforms are not subject to government regulation, but it does mean regulation must pass appropriate First Amendment scrutiny.
The judge also finds that there are constitutional problems with how vague the law is in some areas. And, in others, finds that the law would be impossible to comply with. In discussing the law’s prohibition on “post-prioritization or shadow banning algorithms” for any posts “by or about” a candidate for office, the court finds the provision baffling — saying its plain meaning makes no sense, and that Florida’s defense of it makes even less sense:
But the provision prohibits a platform from using “post-prioritization or shadow banning algorithms” for content by or about a user known to be a candidate. “‘Post-prioritization’ means action by a social media platform to place, feature, or prioritize certain content or material ahead of, below, or in a more or less prominent position than others in a newsfeed, a feed, a view, or in search results.” Fla. Stat. § 501.2041(1)(e) (emphasis added). Unless a platform shuts down completely, compliance with this provision is literally impossible; posts can only be ahead of or below other posts, and posts can only be in a more or less prominent position than other content.
The defendants say, though, that the provision does not mean what it says— that it requires posts by or about candidates to be placed in chronological order. Perhaps Florida courts will rewrite the provision in this way, but they have not done so to this point. One doubts the Florida legislature really intended to require all candidate posts to go to the top, allowing candidates and their supporters to flood every user’s feed, rendering platforms useless, or nearly so. And if that is not what the provision means, one is at a loss to divine any plausible meaning.
Thus, the court says these provisions are likely unconstitutionally vague.
Still, NetChoice/CCIA don’t win their own summary judgment motion, in part because the court says that their amended complaint is still a “quasi-facial challenge” which runs into the same issues the original challenge faced at the Supreme Court, and because of that the court holds off on granting summary judgment, meaning the case continues to move forward to trial, even as the judge makes it pretty clear this law is a complete constitutional mess.
So this is about as good a ruling as NetChoice and CCIA could realistically hope for, given the procedural mess the Supreme Court handed down in Moody. Hinkle has made it abundantly clear that he thinks Florida’s law is a vague, unconstitutional disaster that can’t survive contact with the First Amendment. And yet, because the Supreme Court decided that “facial vs. as-applied” was the hill to die on, he can’t just say so and end it. Instead, a law that everyone — including the judge — can see is unconstitutional gets to march all the way to trial.
That’s the real legacy of Moody’s procedural punt: it didn’t save these laws, but it did make killing them slower, costlier, and more painful than it has any right to be.
Filed Under: 1st amendment, as applied challenge, content moderation, facial challenge, florida, free speech, james uthmeier, moody, moody v. netchoice, robert hinkle, sb 7072, social media
Companies: ccia, netchoice
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