While the appeals court judges found that many of the Florida law’s provisions were likely to be unconstitutional, they reinstated portions of the law that require tech companies to disclose certain types of information relevant to their content moderation processes.
For instance, they found that Florida requiring social media platforms to spell out their content moderation standards, show users the view counts on their posts, and give suspended users access to their data might be permissible. Those provisions will now take effect while a lower court continues to hear the case. But the court rejected a provision that would have required platforms to articulate to users their reasoning for suppressing any given post, ruling that it would be too burdensome.
Importantly, it also swatted away a provision requiring platforms to offer their users the ability to opt out of algorithmic ranking and see every post in their feed in chronological order. That decision, again, was on First Amendment grounds, suggesting platforms have a constitutional right to algorithms and even “shadow banning” – a colloquial term for hiding posts from certain users or making them harder to find, often without the user knowing about it.
Mary Anne Franks, a University of Miami law professor and author of the book “The Cult of the Constitution,” is a critic of what’s sometimes called “First Amendment absolutism” – the idea that the government can almost never interfere with even the most abhorrent speech. She argues there should be room for reforms that allow tech companies to be held responsible when they host or promote certain types of harmful content.