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As Expected: Judge Grants Injunction Blocking Florida's Unconstitutional Social Media Law

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I'm sorry, but those of you looking forward to riding the Friend Feed Flume at Zuckland or the Search Engine Shuffle at GooglePark are probably out of luck. Florida's new social media law (and its theme park owner exemption) is not going to become law.We've written a few times about Florida's blatantly corrupt and unconstitutional social media content moderation law -- complete with its special carveout for Disney*. The legal challenge to the bill had a hearing in court on Monday, and as we expected, Florida's arguments in favor of the bill were not well received. I listened to the entire hearing and, to put it mildly, the judge was not impressed by Florida's arguments. At one point, he literally asked the lawyer defending the bill if he had ever come across a more poorly drafted piece of legislation. That's generally not a good sign.And, now, with just hours to go until the law was supposed to go into effect, the judge has granted the preliminary injunction blocking the bill, and the ruling makes it pretty clear that this bill is not going to survive. Of course, Florida will likely appeal the ruling, and it'll be up to the Appeals Court to go into more depth. During the hearing, the judge, Robert Hinkle, more or less admitted this would be the case, and said that his ruling wouldn't go that deep, because what the Appeals Court says will be more important in the long run. Even so, the ruling is worth exploring, as it smashes the law to bits in a variety of ways.

The State of Florida has adopted legislation that imposes sweepingrequirements on some but not all social-media providers. The legislation appliesonly to large providers, not otherwise-identical but smaller providers, andexplicitly exempts providers under common ownership with any large Floridatheme park. The legislation compels providers to host speech that violates theirstandardsspeech they otherwise would not hostand forbids providers fromspeaking as they otherwise would. The Governor's signing statement andnumerous remarks of legislators show rather clearly that the legislation isviewpoint-based. And parts contravene a federal statute. This order preliminarily enjoins enforcement of the parts of the legislation that are preempted or violate theFirst Amendment.
So, let's start with ye olde 1st Amendment. As we predicted, it's pretty clear that this law violates it. The judge agrees. For all the talk of how the law supposedly "protects" the 1st Amendment, the judge recognized it absolutely does the opposite. I've tried to highlight the key bits if you want to skim:
First, the State has asserted it is on the side of the First Amendment; theplaintiffs are not. It is perhaps a nice sound bite. But the assertion is wholly at oddswith accepted constitutional principles. The First Amendment says Congressshall make no law abridging the freedom of speech or of the press. The FourteenthAmendment extended this prohibition to state and local governments. The FirstAmendment does not restrict the rights of private entities not performingtraditional, exclusive public functions. See, e.g., Manhattan Cmty. Access Corp. v.Halleck, 139 S. Ct. 1921, 1930 (2019). So whatever else may be said of theproviders' actions, they do not violate the First Amendment. Second, the First Amendment applies to speech over the internet, just as itapplies to more traditional forms of communication. See, e.g., Reno v. ACLU, 521U.S. 844, 870 (1997) (stating that prior cases, including those allowing greaterregulation of broadcast media, provide no basis for qualifying the level of FirstAmendment scrutiny that should be applied to the internet).Third, state authority to regulate speech has not increased even if, as Floridaargued nearly 50 years ago and is again arguing today, one or a few powerfulentities have gained a monopoly in the marketplace of ideas, reducing the meansavailable to candidates or other individuals to communicate on matters of publicinterest. In Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), theCourt rejected just such an argument, striking down a Florida statute requiring anewspaper to print a candidate's reply to the newspaper's unfavorable assertions.A similar argument about undue concentration of power was commonplace as thesocial-media restrictions now at issue advanced through the Florida Legislature.But here, as in Tornillo, the argument is wrong on the law; the concentration ofmarket power among large social-media providers does not change the governingFirst Amendment principles. And the argument is also wrong on the facts.Whatever might be said of the largest providers' monopolistic conduct, the internetprovides a greater opportunity for individuals to publish their viewsand forcandidates to communicate directly with votersthan existed before the internet arrived. To its credit, the State does not assert that the dominance of largeproviders renders the First Amendment inapplicable.
The court then explores various precedential cases regarding the ability of the government to compel a private company to host speech and finds that the arguments of Florida are lacking. Since there are speech issues at stake, the law must be subject to strict scrutiny -- and as such it fails the 1st Amendment test. Indeed, public statements made by Florida's governor Ron DeSantis, grandstanding about this bill, are part of what helped to sink it (it would have been sunk anyway, but it's amusing to see his public statements used by the judge here):
The plaintiffs assert, too, with substantial factual support, that the actualmotivation for this legislation was hostility to the social media platforms'perceived liberal viewpoint. Thus, for example, the Governor's signing statementquoted the bill's sponsor in the House of Representatives: Day in and day out, our freedom of speech as conservatives is under attack by the 'big tech' oligarchs inSilicon Valley. But in Florida, we said this egregious example of biased silencingwill not be tolerated. Similarly, in another passage quoted by the Governor, theLieutenant Governor said, What we've been seeing across the U.S. is an effort tosilence, intimidate, and wipe out dissenting voices by the leftist media and bigcorporations. . . . Thankfully in Florida we have a Governor that fights against bigtech oligarchs that contrive, manipulate, and censor if you voice views that runcontrary to their radical leftist narrative. This viewpoint-based motivation,without more, subjects the legislation to strict scrutiny, root and branch. See, e.g.,Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829 (1995)(The government must abstain from regulating speech when the specificmotivating ideology or the opinion or perspective of the speaker is the rationale forthe restriction.) (citing Perry Ed. Ass'n v. Perry Local Educators' Ass'n, 460 U.S.37, 46 (1983)).Moreover, these statements are consistent with the statutory definition ofsocial media platform, which extends only to, and thus makes the legislationapplicable only to, large entitiesthose with $100 million in revenues or 100million monthly participants. As the Supreme Court has recognized, discriminationbetween speakers is often a tell for content discrimination. See, e.g., CitizensUnited v. Fed. Election Comm'n, 558 U.S. 310, 340 (2010) (Speech restrictions based on the identity of the speaker are all too often simply a means to controlcontent.). That is the case here. The state has suggested no other basis forimposing these restrictions only on the largest providers. And even withoutevidence of an improper motive, the application of these requirements to only asmall subset of social-media entities would be sufficient, standing alone, to subjectthese statutes to strict scrutiny. See, e.g., Minneapolis Star & Tribune Co. v.Minnesota Comm'r of Revenue, 460 U.S. 575, 591 (1983); Arkansas Writers'Project, Inc. v. Ragland, 481 U.S. 221, 229 (1987).
And, yeah, the Disney carveout is seen as a tell as well:
Finally, the same is true of the exclusion for social-media providers undercommon ownership with a large Florida theme park. The State asserted in its briefthat the provision could survive intermediate scrutiny, but the proper level ofscrutiny is strict, and in any event, when asked at oral argument, the State couldsuggest no theory under which the exclusion could survive even intermediatescrutiny. The State says this means only that the exclusion fails, but that is at leastquestionable. Despite the obvious constitutional issue posed by the exclusion, theLegislature adopted it, apparently unwilling to subject favored Florida businessesto the statutes' onerous regulatory burdens. It is a stretch to say the severability clause allows a court to impose these burdens on the statutorily excluded entitieswhen the Legislature has not passed, and the Governor has not signed, a statutesubjecting these entities to these requirements.
The judge then goes even further, by noting that even if you applied intermediate scrutiny (a lower standard) the bill still wouldn't live up to 1st Amendment requirements:
The provisions at issue here do not meet the narrow-tailoring requirement.Indeed, some of the disclosure provisions seem designed not to achieve anygovernmental interest but to impose the maximum available burden on the socialmedia platforms
The judge also follows up on his comments during the hearing about how poorly drafted the law is to note the many problems in the law for being vague and open to wildly different interpretations, but notes that given the other reasons to block the law, he doesn't need to use the vagueness issue for the injunction.In the end, the court recognizes that this bill was really all about punishing a few companies, and that's not how the law is supposed to work:
The legislation now at issue was an effort to rein in social-media providersdeemed too large and too liberal. Balancing the exchange of ideas among privatespeakers is not a legitimate governmental interest. And even aside from the actualmotivation for this legislation, it is plainly content-based and subject to strictscrutiny. It is also subject to strict scrutiny because it discriminates on its faceamong otherwise-identical speakers: between social-media providers that do or donot meet the legislation's size requirements and are or are not under commonownership with a theme park. The legislation does not survive strict scrutiny.
There is also, extremely briefly, a recognition that the law is likely pre-empted by Section 230, basically highlighting that the law clearly violates 230's prohibitions on allowing platforms to moderate as they see fit:
Florida Statutes 106.072 prohibits a social media platform fromdeplatforming a candidate for office and imposes substantial fines: $250,000 perday for a statewide office and $25,000 per day for any other office. Butdeplatforming a candidate restricts access to material the platform plainlyconsiders objectionable within the meaning of 47 U.S.C. 230(c)(2). If this is donein good faithas can happenthe Florida provision imposing daily fines ispreempted by 230(e)(3). Good faith, for this purpose, is determined by federallaw, not state law. Removing a candidate from a platform based on otherwiselegitimate, generally applicable standardsthose applicable to individuals who arenot candidateseasily meets the good-faith requirement. Indeed, even a mistakenapplication of standards may occur in good faith.The federal statute also preempts the parts of Florida Statutes 501.2041that purport to impose liability for other decisions to remove or restrict access tocontent. See Fla. Stat. 501.2041(6) (creating a private right of action for damagesfor violations of 501.2041(2)(b) and (2)(d)1; id. 501.2041(2)(b) (requiring asocial media platform to apply censorship, deplatforming, and shadow banningstandards in a consistent manner); id. 501.2041(2)(d)1 (prohibiting a socialmedia platform from deplatforming a user or censoring or shadow banning a user'scontent without notifying the user); 501.2041(2) (making any violation of thatsubsection an unfair or deceptive act or practice within the meaning of 501.204and thus providing a private right of action for damages under 501.211).Claims based on alleged inconsistency of a platform's removal of someposts but not others are preempted.
That last line needs to be repeated over and over again for every state considering these kinds of laws.Anyway, Florida is almost certainly going to waste more taxpayer dollars and appeal this ruling, but it's really difficult to see how the law survives. It was a garbage unconstitutional bill from the very beginning -- a point that many, many people made clear to both Governor DeSantis and the legislators who pushed this bill. But, of course, the goal was never to get this bill into actual law. It was all a big theater production -- to let them pretend to be culture warriors against "the libs" who they claim run social media platforms. It's just unfortunate that they get to throw away taxpayer money on their theatrical grandstanding.* By the way, if you'd like to see a fun moment in the Florida legislature during the debate over the bill, check out this fairly incredible video of the discussion between Rep. Blaise Ingoglia -- who inserted the Disney carveout -- and Rep. Anna Eskamani who wants to get him on record explaining why. Ingoglia flat out admits that it's to protect Disney, though his argument is so hilariously dumb it's hard to believe it's real. He argues that they need to protect Disney+ reviews (Disney+ doesn't currently have reviews) and that it shouldn't apply to other sites, because Disney creates its own content. This ignores, of course, that the entire bill is about the moderation of 3rd party content (such as, uh, reviews, which are not created by Disney). It's almost as if he doesn't understand what all of this means, and is just making sure to do a favor to Disney, just because.


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posted at: 12:00am on 01-Jul-2021
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Supreme Court Says Patent Review Judges Are Unconstitutional, But It Can Be Fixed If USPTO Director Can Overrule Their Decisions

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As you may recall, a few weeks ago I wrote about how Congress was asking the GAO to investigate whether the director of the US Patent & Trademark Office had been interfering in determinations made by the Patent Trial and Appeal Board (PTAB). I'm not going to go into all of the background again (please read the original for that), but under the America Invents Act, a process for reviewing patents after they were granted was set up, known as the Inter Partes Review (IPR) process. This was important, because the granting of patents is a non-adversarial process, where patent examiners are not given very much time to actually review everything. So the IPR process allowed those (especially those with prior art) to kick off a process by which the PTAB would recheck to see if the original examiner made a mistake in granting a 20 year monopoly to someone.Unfortunately, because the members of the PTAB are designated as Administrative Patent Judges (APJs), there was the question of whether or not they needed to be appointed by the President with Senate confirmation to abide by the Appointments Clause of the Constitution. That question has been hanging out in the Supreme Court for many months -- with the decision finally coming down this week. In arguing against this notion, the USPTO itself had claimed that the APJs were "interior officers" that don't need Senate confirmation, and part of their "proof" was that the Director of the PTO could review their decisions. This raised some alarms in Congress, because it certainly wasn't their intention (from everything stated so far) to allow the Director of the PTO to put their finger on the scale of what is and what is not patentable.The full opinion from the Supreme Court is a bit of a mess -- with different Justices signing onto different parts. But the key bits to pull out of this are that the Supreme Court found that the APJs are (or have been) "Principal Officers" meaning they should have been appointed by the President and confirmed by the Senate.

History reinforces the conclusion that the unreviewableexecutive power exercised by APJs is incompatible withtheir status as inferior officers. Since the founding, principal officers have directed the decisions of inferior officers onmatters of law as well as policy. Hamilton articulated theprinciple of constitutional accountability underlying suchsupervision in a 1792 Treasury circular. Writing as Secretary of the Treasury to the customs officials under hischarge, he warned that any deviations from his instructionswould be subversive of uniformity in the execution of thelaws. 3 Works of Alexander Hamilton 557 (J. Hamilton ed.1850). The power to superintend, he explained, must imply a right to judge and direct, thereby ensuring that theresponsibility for a wrong construction rests with the headof the department, when it proceeds from him.
However, in then immediately inserts its own remedy, saying that everything is fixable if the Patent Office Director actually can review the IPR decisions.
In sum, we hold that 35 U. S. C. §6(c) is unenforceable asapplied to the Director insofar as it prevents the Directorfrom reviewing the decisions of the PTAB on his own. TheDirector may engage in such review and reach his own decision. When reviewing such a decision by the Director, acourt must decide the case conformably to the constitution,disregarding the law placing restrictions on his review authority in violation of Article II
So, the good news here is that the important PTAB/IPR process remains alive. But it does seem quite worrisome that the end result is that any Director of the Patent Office can now step in and overrule the PTAB. One would hope that the political ramifications of doing so would prevent it, but it does seem that it's now possible that a Director who just doesn't like the whole IPR/PTAB process (and there are many patent system fans who hate it) could just automatically deny every single IPR.And that seems very worrisome. Of course, all of this could be solved by making the APJs Senate confirmable, but apparently no one wants to bother with doing that. Alternatively, we could rethink the entire patent approval process altogether, so that it doesn't need to go back and realize it granted 20 year monopolies for no good reasons... but, you know, that would take actual effort.

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posted at: 12:00am on 01-Jul-2021
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