On Monday, federal Judge Robert Hinkle “appeared skeptical about a new Florida law aimed at punishing social media companies that strip users from their platforms or flag users’ content,” the Tampa Bay Times reported. That law has been a top priority of the administration of Florida Republican Governor Ron DeSantis, who signed it into law after Twitter and Facebook removed Donald Trump from their platforms. If the law is allowed to go into effect — which it’s set to do Thursday, unless Hinkle stops it — social media companies stand to be fined $250,000 per day in the event of the removal of statewide candidates from their platforms. If non-statewide candidates are removed, the fine is $25,000 a day.
The law, obviously, is unhinged. Attorney Brian Willen, who represents NetChoice and the Computer & Communications Industry Association in a federal lawsuit against the legislation, argued in a Monday court hearing that the measure “is a sweeping attack on core First Amendment rights” of social media companies. Willen’s side has asked Hinkle to block the law from going into effect this week, and although the judge didn’t rule on the matter on Monday, he indicated that he expected to issue his formal conclusion before Thursday, when the law has been scheduled to become enforceable.
The way that the judge is leaning seems pretty clear; addressing lawyers for DeSantis’s team, Hinkle quipped on Monday that he wouldn’t “put you on the spot and ask you if you’ve ever dealt with a statute that was more poorly drafted.” Getting into more detail, Hinkle criticized the messy wording of the law, which he suggested made it difficult to apply it. As he put it:
‘It just seems to me that you can only make sense out of this statute if you know what the Legislature must have meant, not what it said. And I think that’s a hard argument in Florida, where the court says, just read the words.’
Hinkle questioned Brian Barnes, an attorney for DeSantis’s side, about a ban in the law against what it calls “post-prioritization,” which the legislation itself explains as a process placing candidates’ posts “ahead of, below, or in a more or less prominent position than others in a newsfeed, a feed, a view, or in search results.” Barnes said that authorities “read that language to basically mandate chronological presentation,” and Hinkle observed in response that he knows “that because that just makes sense, even though it’s not what the statute says.” Having to rely on assumptions rather than what certain legislation actually says certainly is not a reliable method for implementing statewide demands, to say the least.
Hinkle also observed that “what the state of Florida apparently believes is we’ll just have a completely different internet or social media in Florida than everywhere else,” with social media sites needing “to provide a different platform in Florida.” That, again, could pose a problem. Hinkle also observed that there’s what he called “an equal protection problem” looming over the situation, since the law exempts theme park companies from the online content moderation requirements. Legislators “had to know that this was a major constitutional issue,” as the judge put it.
