Judge Preliminarily Enjoins Florida's Social Media Statute

The order (NetChoice LLC v. Moody) just came down from Judge Robert L. Hinkle; I hope to have more on it in the days to come, but here's one excerpt:

FAIR and PruneYard establish that compelling a person to allow a visitor access to the person's property, for the purpose of speaking, is not a First Amendment violation, so long as the person is not compelled to speak, the person is not restricted from speaking, and the message of the visitor is not likely to be attributed to the person.

The Florida statutes now at issue, unlike the state actions in FAIR and PruneYard, explicitly forbid social media platforms from appending their own statements to posts by some users. And the statutes compel the platforms to change their own speech in other respects, including, for example, by dictating how the platforms may arrange speech on their sites. This is a far greater burden on the platforms' own speech than was involved in FAIR or PruneYard.

Comments

[ReaderY]

In my view, Florida can provide that a private letter-carrier can’t open mail and attach their own messages to the contents.

Such a law might be pre-empted by federal law. But it doesn’t violate the private mail carrier’s Furst aamendment rights.

Private mail carriers are free to send their own messages unattached to their users’ if they want. But they can be prohibited from piggy-backing on their users.

And if a mail-carrier develops that offers free mail delivery in exchange for openning the users’ mail, reading the messages, and appending its own messages including suitable advertisements before delivering. Florida can still pass a law prohibiting openning mail and appending messages to it, even though it results in flat-out prohibiting such a business model, if it wants to.

It is limited by federal preemption in doing so. But not by the First Amendment.

[Voize of Reazon]

Reader, is it prohibitable piggy-backing if the private carrier delivers their own advertising junk mail along with every bundle of 3rd party mail they deliver?
Concerning opening sealed mail and reading the contents, does it make a difference if the 3rd party mail consists entirely of postcards?

[Krayt]

Those aren't attached in the same way, attempting to alter the contents as understood (or desired to be understood by the writer.)

Aren't writings copyrighted automatically, at least for a little while? Doesn't this amount to altering the copyrighted message?

There have been lawsuits or complaints about film colorization, speeding it up, 3rd parties editing out profanity and nudity for pay on a business model of request from viewers. "No, you can't do that because it alters the film, for pay, a derivative work, without the owners' permission."

Wouldn't attaching a wrapper, "This guy's post should be considered false", as a condition of opening the letter similarly be attaching your speech to someone else's, making it a derivative work?

IANAL but the pieces are there at what I'm getting at.

[Krayt]

You are literally (attempting) to alter the meaning of it in ways the author ​did not intend.

Now that is core to free speech, of course, in the normal course of dialog. But as a gateway process?

Presumably there's boilerplate allowing them to edit it directly in the tos, so maybe no official infraction.

[Rossami]

It could be a copyright violation IF you attempted to pass the derivative work off as the original. However, since the modifications are clearly noted and attributed, it would almost invariably fall under the Fair Use exceptions - specifically for criticism and commentary.

Copyright does not give you absolute authority to block derivative works. So, no, I don't think copyright law is the correct model to solve the balancing of rights here.

[David Nieporent]

Wouldn’t attaching a wrapper, “This guy’s post should be considered false”, as a condition of opening the letter similarly be attaching your speech to someone else’s, making it a derivative work?

No. That's not what a derivative work is. No more than seeing trailers and ads at the movie theater before the movie starts creates a derivative work.

In any case, it would obviously be fair use so it would be irrelevant.

[Voize of Reazon]

Krayt, when you replied to my comment you did not create a derivative work, never mind one in violation of copyright.

[NToJ]

The entire argument depends on social media being letter-carriers. But that’s not what they do.

[David Nieporent]

Again, you have this weird idea that a state can evade the first amendment by forcing a company to use a business model to which (you think that) the first amendment doesn't apply.

Now, it might be constitutionally permissible for Florida to ban a private mail carrier from opening mail; that's a completely content-neutral regulation of conduct, not speech. But that's not a concession that your social media arguments are valid, because in social media the envelopes are already "open," so the analogy doesn't work.

And on what basis can Florida ban "piggybacking"? Can Florida forbid Mailboxes Etc. from putting up messages in its stores that anyone who comes in to collect his mail is going to see?

[ReaderY]

You post something on Facebook to friends, and the recipients are limited to a set of people you identify. That’s like a letter, not like a postcard. A state can pass a law saying the list of people the poster identifies represents the only people who can see it, and Facebook still has to serve you if you decline to include it or its advertisers on the list. No First Amendment problem with that.

[ReaderY]

Congress could pass a law saying everything sent in the mail has to be sealed. It could make postcards illegal if it wanted to. No First Amendment problem. It certainly has a rational basis for doing so (privacy, security, etc.) and it’s completely content neutral.

[Krayt]

You could argue post cards allow you to talk to the postal workers along the way, and Congress may not restrict who you can talk to.

[David Nieporent]

Of course Congress can say that everything in the mail must be sealed; the USPS is a governmental agency. So obviously Congress can tell it what its business model must be. That doesn’t mean Congress can tell FedEx that it can’t deliver postcards.

(There’s no governmental interest in “privacy” for things that people don’t want to keep private.)

[ReaderY]

Are you suggesting federal wiretap laws, which apply to private companies, are an unconstitutional infringement on free speech?

If a phone company wanted to offer a “free” phone service and make its money by analyzing your conversations and selling your contact info to advertisers selected based on your conversations’ content, doing so would be illegal under current federal wiretap law. Are you saying federal wiretap law, which effectively makes such a business model illegal, is unconstitutional under these circumstances?

[David Nieporent]

You keep citing some abstract “federal wiretap law.” What specific provision of federal law do you contend would make what you describe illegal?

[Dr. Ed 2]

Well, in MA, 272 MGL 99 comes to mind...

[David Nieporent]

As you always say, YANAL. That law does indeed ban what one might call "wiretaps." But would not apply to ReaderY's hypothetical phone company's actions. (Even under the most expansive reading of the statute, it would simply require a notification before the call began that the call was being monitored, as we often hear businesses provide now.)

[Rossami]

No, it wouldn't be illegal since you are consenting to the phone company being a de facto party to all your calls. If you want to allow someone else to listen to your calls in exchange for free service (or some other consideration like a wage), you may do that. Employees already do that pretty much everywhere. There is no "federal wiretap law" implication.

Caveats:
The phone company might be in trouble in 'two-party consent' states but that's not relevant to your scenario.
And, of course, whether your consent was entirely voluntary is a reasonable question. But again, not relevant to your hypothetical.

[Voize of Reazon]

Postcards are addressed to recipients too, but in any case you can make public posts on Facebook as well as ones targeted to groups or even individuals. Since the First Amendment protects the right to listen as well as to speak, I do believe it would be unconstitutional to ban them from reading messages everyone else can read.

[shawn_dude]

I notice that your comment here has a few things "piggybacking" on it supplied by Disqus: Your name, date, time, a "flag comment" link and a "mute user" link.

Some services allow for up and down voting and display the scores along with the message.

How is Facebook, Twitter, et al any different?

[shawn_dude]

Edit... not Disqus but Reason's custom comment system.

[shawn_dude]

A better example would be a "letter to the editor" or a free ad/blurb posted to a personals section. Both Twitter and Facebook are publishers not letter carriers.

[ReaderY]

In my virw, FAIR and Pruneyard are inapt. The Facebook user no more merely occupies Facebook’s property than a letter occupies FedEx’s property. FedEx exists, and can be assigned a legal duty, to deliver the letter without interference. Same here. Restrictions on what Facebook can do when delivering users’ messages, and prohibitions on commingling its own messages with the messages it is delivering, are as valid as in the case of the mail carrier.

[NOVA Lawyer]

The owner of billboards can accept certain advertisements and/or messages and reject others. There is no libertarian basis for forcing billboard owners to carry whatever message a customer wants. A newspaper can accept and reject articles or include an editorial along with the article when it publishes. A baker can refuse to write messages on a cake with which the baker disagrees. This isn't Google appending its messages to your email (which are private communications more akin to a letter), this is Facebook or Twitter saying we reserve the right to reject messages we find offensive or otherwise sufficiently disagreeable that we don't want to publicly post those messages. Some public postings will come with a warning. It's a privately owned, publicly displayed billboard/classified ads/newsletter/cake.

This law preferences political speech over other speech and some speakers (political candidates) over other speakers. The government may not do that consistent with the First Amendment, it seems to me. Even if I am wrong, dictating to private businesses (emphasis on the plural) what speech they must carry and what speech of their own they may not include is wholly inconsistent with libertarian principles as well as small "l" liberalism. Got to another platform, create your own, but Facebook shouldn't have to carry your false, misleading, or offensive propaganda if they don't want to. And, being a private entity, they get to decide what they think is false, misleading, or offensive. Or, next, you'll be telling me the Church bulletin has to reprint a Christopher Hitchens article upon my request.

I'll look forward to Eugene's take.

[Dr. Ed 2]

Then Florida can tax....

[NToJ]

The reason FedEx is a common carrier is because it sells a service in which it takes personal property from people and transports it. Facebook doesn’t do that. For example, you don’t own the comments you post on this website.

[rsteinmetz]

Why not? Because of the TOS most users don't read that can be unilateraly changed.

[NToJ]

Because of the current TOS.

[ReaderY]

A phone company is also considered a common carrier, and it doesn’t transport anything physical, just messages in electronic format.

[NToJ]

The reasons telephone companies are common carriers are not the same as why FedEx is a common carrier, except that both telephone companies and FedEx sell their services to the public generally, and do not restrict who can use their services. Which distinguishes them both from Facebook. Also, Facebook hosts its own content. They're not transmitting it between two people. When you post on Facebook, you're posting on their property.

[David Nieporent]

Restrictions on what Facebook can do when delivering users’ messages, and prohibitions on commingling its own messages with the messages it is delivering, are as valid as in the case of the mail carrier.

Agreed, in that both violate the first amendment and are equally (in)valid.

You have the cause and effect backwards with FedEx. It's not "FedEx is a common carrier, so it can be forced to deliver letters without interference." It's "FedEx delivers letters without interference, so therefore it's a common carrier." And since Facebook doesn't promise to deliver things without interference, it isn't a common carrier. But even as a common carrier, FedEx can't be prevented from delivering its own messages.

[Dr. Ed 2]

Can Florida outright ban farcebook?

[Zarniwoop]

No. Same way they can't "ban the NYTimes" because you have a wild hair up your posterior about their viewpoint. See 1st Amd.

Next dumb question?

[Dr. Ed 2]

But both State and Federal election officials can prohibit the NYT from running free political ads (beyond a certain "in kind donation" limit) -- and that's constitutional...

Furthermore, *may* the NYT refuse to accept paid political advertising from a candidate it doesn't like?

[Ben_]

They should have just banned them from government computer systems and networks and from government contracts for interfering with the speech of candidates on the ballot.

[Zarniwoop]

Can you please restate that in a way that makes sense .. any sort of sense at all?

I mean, I assume you have a point to make. What is it?

[David Nieporent]

Can you please restate that in a way that makes sense .. any sort of sense at all?

No, no, he can't.

[Life of Brian]

I mean, I assume you have a point to make. What is it?

I'd imagine it was to help confirm you're a pompous jerk. Seems to have worked swimmingly.

[NOVA Lawyer]

I’d imagine it was to help confirm you’re a pompous jerk.

So you agree Ben said something mind-numbingly stupid? You just think he did it intentionally? Alrighty.

[Michael P]

What he wrote was perfectly intelligible: That Florida should block (network traffic to or from) Facebook from the state government's networks, and forbid state entities from contacting with Facebook (e.g. for publicity campaigns), because Facebook interfered with the speech of electoral candidates.

Whether that's good policy is another question, but it requires poor reading comprehension to miss the meaning.

[Hank Ferrous]

Agreed, it was quite clear; perhaps less time spent assuming that the OP is saying something stupid and feeling superior would help some folks. I don't have high hopes, the commentariat have largely devolved into twitterati over the past few years. That aside, it's a good policy if neutral but as a retributive action, seems petty. As a bonus, social media use on a government network detracts from productivity.

[NOVA Lawyer]

perhaps less time spent assuming that the OP is saying something stupid

But what he said was stupid. It's not necessary to make any assumptions to reach that conclusion.

Social media use on government property is already largely prohibited. Certainly, posting anything political on government equipment is. Creating additional, viewpoint-based exclusions for certain social media platforms vis a vis other social media platforms violates the principles of free speech.

And denying government contracts unrelated to government messaging to people because they didn't amplify the political speech the government wanted them to amplify also goes against every conceivable principle underlying freedom of speech.

[Life of Brian]

So you agree Ben said something mind-numbingly stupid? You just think he did it intentionally?

Wow. I had no idea poor reading comprehension was infectious, but here we are.

[NOVA Lawyer]

So, having read the decision, it's great. It highlights what an incredibly obtuse, slapdash, and generally idiotic piece of legislative excrement Florida's Senate Bill 7072 is. The thing is unquestionably, it appears to me, over-inclusive, under-inclusive, contains poorly worded definitions, ridiculous ambiguities, is internally inconsistent, manages to be as complex as reasonably achievable given the rush to cancel the cancel culture, and, the piece de resistance, is actually impossible to implement as envisioned in the fever dreams of these legislators.

I thought conservatives* (I know, I know, try to find an actual conservative in today's GOP) were supposed to hate regulation. The Florida Act is a great example of what is wrong with trying to tell private businesses how they should operate. It is clear that whoever wrote the Act is clueless as to how these businesses actually operate.

Beyond all of that, the Act is also a wonderful example of politicians legislating special privileges for themselves. Asinine is much too mild to describe the Act, those who voted for it, and he who signed it.

And then throw in pork to special interests (a social media platform that is under common ownership with a theme park). I mean, seriously?

To call the Act a dumpster fire of craven political posturing is an insult to dumpster fires. It's so bad, my operating assumption is that even the dimwits who wrote, passed, and signed it knew it could never take effect and instead intend to use both the Act and then its inevitable invalidation as propaganda about cancel culture and liberal courts. How stupid must they think their voters are?

[David Nieporent]

To call the Act a dumpster fire of craven political posturing is an insult to dumpster fires. It’s so bad, my operating assumption is that even the dimwits who wrote, passed, and signed it knew it could never take effect and instead intend to use both the Act and then its inevitable invalidation as propaganda about cancel culture and liberal courts.

Oh, I think most of us agree with that. It was a press release, not a law.

How stupid must they think their voters are?

About as stupid as the rest of us do.

[Rev. Arthur L. Kirkland]

Right-wingers' stupidity and gullibility generate plenty of problems, but I try to look at the bright side:

1) it makes them uncompetitive in the culture war, delivering the result I prefer with respect to arranging our national progress

2) my children and grandchildren get to compete economically with these bigoted, half-educated, superstitious, backwater clingers

[shawn_dude]

Burning down the house in order to roast a pig.
Gotta love it.

This was all just a move on DeSantis' part to chest-thump and rile up the voters as he prepares to run as the new Trump in the 2024 elections.

[Aktenberg78]

You can always find a federal judge appointed by Klinton or Obongo to issue an injunction against any conservative action or law.

[David Nieporent]

Maybe. But there's nothing conservative about this law.

[shawn_dude]

Well, not conservative but most definitely "Conservative(tm)"

This is what the "Conservative party" has become in the US these days. I'd crack a joke about how this is the new "NASCAR party" but even NASCAR itself has backed away.

[David Nieporent]

Probably the most truth in advertising would be to call it the Trumpkin Party, or perhaps the OwningTheLibs Party. There isn't anything of substance to them — remember that they couldn't even produce a party platform in 2020 — beyond opposing what they perceive their opponents support.