Last month, the 11th Circuit Court of Appeals held that several parts of Florida’s social media law, S.B. 7072, were likely unconstitutional. That sentence should give readers pause. The court’s decision did not rest on Section 230. Rather, it rested on the argument that social media platforms (platforms) enjoy a First Amendment right to censor, shadow-ban, deplatform, and moderate third-party content in any way they want. Last week, the Supreme Court blocked a similar Texas social media law from being enforced that the 5th Circuit greenlighted. While the justices that granted relief from the shadow docket did not explain their reasoning, the decision resulted in an unusual 5-4 split.
While champions of big tech are excited about the 11th Circuit’s ruling, they shouldn’t get too excited. For years they’ve wrongly argued that Section 230 codified the First Amendment. That argument presupposes that platforms enjoyed no First Amendment rights before Section 230 and the First Amendment provides a right to be free from publisher liability. While both arguments are wrong, the real question becomes, if the First Amendment purportedly protects a platform’s content moderation decisions, what’s the point of Section 230? Well, now it might be unconstitutional.
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