A Florida appeals court on has refused to stop the state attorney general’s lawsuit against Meta.
The lawsuit is the same one in which Attorney General James Uthmeier in October asked the court to make Meta implement age checks on all Floridian users.
The court of appeals was asked by Meta to quash the decision of a lower instance, Pasco County Circuit Judge Alicia Polk, who last year refused to dismiss the case in a brief order, finding that the complaint “sufficiently pleads the claims.”
Meta went to the appeals court to try and get the lawsuit dismissed, but the judges found that the question of “irreparable harm” was “dispositive” and that they therefore “do not reach the merits of the petition.”
In a footnote, the court said that nothing in its opinion should be taken as “in any way to constitute a comment on the merits of the Attorney General’s FDUTPA complaint or Meta’s claim of immunity from liability under section 230 or the First Amendment.”
The court did, however, address some of these issues, and ruled that Section 230 is a “limited statutory immunity” and “not absolute immunity from involvement in any type of lawsuit” – which means that a platform can be made to go through the whole legal process before this defense is tested.
As for the First Amendment, the court found that the lower instance judge’s decision “does not come close to infringing on Meta’s First Amendment rights” and that “none of Meta’s First Amendment rights have been altered” – since no injunction has been granted yet.
The court did quote a previous ruling that said First Amendment protections extend to “unnecessary litigation that chills speech” – and said that the burden of litigating was not enough to establish such a violation.
Meta argued that it has “the right to exercise editorial discretion over the third-party content provided on its platforms” and “the right to be free from government-compelled speech.”
In its petition, Meta said, “Just as Meta could not be held liable for alleged harm caused by a direct exercise of editorial discretion, Meta cannot be held liable for alleged harm caused by publication features that simply operationalize its editorial choices.”
The state of Florida said that its case is about Meta’s “own conduct” – namely, its design choices – and conceded that editorial control of third-party content is protected.
In October, Florida was asking the court to make Meta “Request proof of age for Instagram and Facebook accounts belonging to users that Meta’s systems know or predict to be under the age of 14, and mark for deletion the accounts of those who do not verify their age within 30 days.”
Another request was to “Treat users who Meta has reason to believe are under 14 or under 18 years of age as under those respective ages unless the users age verify.”
If Meta cannot implement these measures within 30 days, the giant was to “cease to allow any Young Users access to its Platforms in Florida until these measures are implemented.”
In order to sort teenagers from adults, Meta would have to check everyone. As Reclaim The Net noted at the time, “you cannot check teenagers without checking everyone.”
After the ruling, Florida Attorney General Uthmeier said, “Unlike other states, Florida isn’t going to sell out.”
Florida is going it alone in this lawsuit, and it is doing so in order to try and achieve something that goes even beyond the national settlement reached earlier this year.
That settlement already requires age "assurance" for every Facebook and Instagram user in the states that are part of it – but both sides in that case waived any right to call the requirement unconstitutional.
Meta is no free speech hero – the giant is perfectly willing to censor content and silence users, and has done so on a massive scale. But the questions it raised in this case are the right ones – and the fact that the court has not addressed them is worrying.
