ATLANTA — The Knight First Amendment Institute at Columbia University late yesterday filed an amicus brief in a case challenging a Florida law—the first of its kind in the nation—that limits the power of social media companies to moderate speech on their platforms. The Institute urged the Eleventh Circuit Court of Appeals to affirm the district court’s decision blocking the law.

“The Florida statute is plainly unconstitutional, and the appeals court should say so,” said Jameel Jaffer, the Knight Institute’s executive director. “But it’s crucial that the appeals court reject theories of the First Amendment that would preclude the government from regulating more carefully to protect free speech online. As we explain in our brief, it matters what the court does in this case, but it also matters how the court does it.”

In arguing that the Florida law is unconstitutional, the Knight Institute’s brief points out that the law specifically targets those social media platforms perceived to have a liberal bias (including Twitter and Facebook), but not smaller ones believed to support conservative viewpoints. In addition, the law exempts platforms that own a Florida theme park, a clear reference to Disney, which has significant operations in the state. In June of this year, the district court enjoined the law, concluding that it discriminates against social media companies based on their viewpoint in violation of the First Amendment.

The state of Florida and the trade groups challenging the law, NetChoice and the Computer & Communications Industry Association, offer extreme and opposing theories about how the First Amendment should apply to social media platforms. The Knight Institute’s brief urges the court to reject both theories. As the brief explains, adopting Florida’s position “would render the First Amendment largely irrelevant to the question of how governments should regulate social media,” and thus “would give the government sweeping authority over the digital public sphere.” Adopting the social media companies’ position, by contrast, “would make it nearly impossible for governments to enact even narrowly drawn laws intended to ensure that the digital public sphere serves democracy.” The Knight Institute’s brief argues that “the courts need not choose between ‘all’ or ‘nothing’ in this sphere.” 

“Adopting Florida’s position would give the government sweeping authority over the digital public sphere and impede social media companies from addressing real harms online, while adopting the social media platforms’ position would make it difficult or impossible for governments to enact even carefully drafted laws relating to transparency, privacy, and due process,” said Scott Wilkens, senior staff attorney at the Knight Institute. “Neither of these theories of the First Amendment would serve our society well in the digital age.”

Read the Knight Institute’s brief here.

Lawyers on the case, in addition to Jaffer and Wilkens, include Alex Abdo, litigation director for the Knight Institute.

For more information, contact: Lorraine Kenny, [email protected].