Florida Gov. Ron DeSantis yesterday signed a bill into law to stop what he called the “censorship” of conservatives on social-media websites such as Twitter and Facebook. The law is likely to be challenged in court and has been described as blatantly unconstitutional by legal experts and advocacy groups across the political spectrum.

But Florida’s governor and legislature were undeterred by the possibility that courts will strike down the law as violating the First Amendment. The law gives Floridians the right to sue Big Tech companies over content-moderation decisions and prohibits the companies from “deplatforming” political candidates and journalistic enterprises. It is scheduled to take effect on July 1.

“This session, we took action to ensure that ‘We the People’—real Floridians across the Sunshine State—are guaranteed protection against the Silicon Valley elites,” DeSantis, who has a Harvard University law degree, said in a press release. “Many in our state have experienced censorship and other tyrannical behavior firsthand in Cuba and Venezuela. If Big Tech censors enforce rules inconsistently, to discriminate in favor of the dominant Silicon Valley ideology, they will now be held accountable.” Lt. Gov. Jeanette Nuñez said the law is important because many Floridians “know the dangers of being silenced or have been silenced themselves under communist rule.”

The new law (full text) carves out an exception for tech companies that happen to also own theme parks. That would exempt both Disney and Comcast, the latter of which owns NBCUniversal including Universal Theme Parks. Specifically, the law exempts “any information service, system, Internet search engine, or access software provider operated by a company that owns and operates a theme park or entertainment complex as defined in [Florida law].” To qualify for the exemption, the company’s theme park or entertainment complex must be “comprised of at least 25 contiguous acres,” provide “permanent exhibitions and a variety of recreational activities,” and have “a minimum of 1 million visitors annually.”

While the governor’s announcement didn’t explain the theme-park exemption, it said that “Floridians treated unfairly by Big Tech platforms will have the right to sue companies that violate this law—and win monetary damages. This reform safeguards the rights of every Floridian by requiring social-media companies to be transparent about their content moderation practices and give users proper notice of changes to those policies, which prevents Big Tech bureaucrats from ‘moving the goalposts’ to silence viewpoints they don’t like.”

Additionally, the Florida attorney general “can bring action against technology companies that violate this law, under Florida’s Unfair and Deceptive Trade Practices Act.” Companies that violate the law “will be restricted from contracting with any public entity.”

Ban on banning politicians

The prohibition on kicking politicians off social media platforms allows the Florida Election Commission to “impose fines of $250,000 per day on any social media company that deplatforms any candidate for statewide office, and $25,000 per day for deplatforming candidates for non-statewide offices.”

The law says that “[a] social media platform may not willfully deplatform a candidate for office who is known by the social media platform to be a candidate” and that the “platform must provide each user a method by which the user may be identified as a qualified candidate.” Deplatform is defined as “the action or practice by a social media platform to permanently delete or ban a user or to temporarily delete or ban a user from the social media platform for more than 14 days.”

DeSantis objected to the banning of then-President Donald Trump, who was kicked off Twitter and Facebook for inciting violence. “Any Floridian can block any candidate they don’t want to hear from, and that is a right that belongs to each citizen—it’s not for Big Tech companies to decide,” the governor’s announcement said.

US Sen. Ron Wyden (D-Ore.) blasted Florida’s leaders in a statement yesterday. “Following Donald Trump’s lead, Republican-led states are determined to pass laws to force websites and apps to host lies, misinformation and other slime, with full knowledge that those laws are unconstitutional,” Wyden said. “The latest such example out of Florida—which compels online sites to host the speech of politicians—is particularly egregious, and an invitation for extremists, racists and liars to register as political candidates just to keep their posts online.”

While numerous experts believe the Florida law will eventually be struck down, Supreme Court Justice Clarence Thomas recently argued that social media platforms could be regulated as “common carriers.”

Defining censorship

Nuñez claimed that there has been “an effort to silence, intimidate, and wipe out dissenting voices by the leftist media and big corporations. Today, by signing SB 7072 into law, Florida is taking back the virtual public square as a place where information and ideas can flow freely. Many of our constituents know the dangers of being silenced or have been silenced themselves under communist rule. Thankfully in Florida we have a governor that fights against big tech oligarchs that contrive, manipulate, and censor if you voice views that run contrary to their radical leftist narrative.”

The law requires social media platforms to “publish the standards, including detailed definitions, it uses or has used for determining how to censor, deplatform, and shadow ban” and to “apply censorship, deplatforming, and shadow banning standards in a consistent manner among its users on the platform.” It also says the platforms “may not take any action to censor, deplatform, or shadow ban a journalistic enterprise based on the content of its publication or broadcast,” unless the content is “obscene.”

The law defines censorship as “any action taken by a social media platform to delete, regulate, restrict, edit, alter, inhibit the publication or republication of, suspend a right to post, remove, or post an addendum to any content or material posted by a user,” and “actions to inhibit the ability of a user to be viewable by or to interact with another user of the social media platform.” Shadow banning is defined as actions “to limit or eliminate the exposure of a user or content or material posted by a user to other users of the social media platform.”

Supreme Court precedent may doom Florida law

Experts who say the new law is unconstitutional cite a previous case in which a similar Florida law was struck down. After DeSantis announced the proposal in February, First Amendment attorney Ari Cohn told Law & Crime that it “raises the same issue as a previous Florida law which required newspapers that criticized a political candidate to publish that candidate’s response.” In the 1974 case, Miami Herald v. Tornillo, “the Supreme Court struck down the law, ruling that it violated the newspapers’ First Amendment right to choose which content to run or not run,” Cohn said. That case involved a law enacted in 1913.

The Law & Crime article continued:

Professor Daxton “Chip” Stewart, a media law expert who referred to the proposal as “hilariously unconstitutional,” said that DeSantis exhibited a fundamental misunderstanding of corporations’ rights.

“Basically, DeSantis seems to forget that private companies like Facebook and Twitter have First Amendment rights, too,” Stewart noted. “The government can’t force them to host speech they don’t want to, or threaten punishment like these absurd fines for refusing to give platforms to people they find intolerable. Just as a platform can remove accounts of terrorists or the KKK or a cabal that conspires to violently overthrow the government, they can remove accounts of any other individual.”

EFF and TechFreedom agree

The Electronic Frontier Foundation cited the same case. “Since Tornillo, courts have consistently applied it as binding precedent, including applying Tornillo to social media and Internet search engines, the very targets of the [Florida] Transparency in Technology Act (unless they own a theme park),” EFF General Counsel Kurt Opsahl wrote earlier this month. “Indeed, the compelled speech doctrine has even been used to strike down other attempts to counter perceived censorship of conservative speakers.”

On the Lawfare blog in March, TechFreedom Internet Policy Counsel Corbin Barthold and President Berin Szóka also pointed to the Miami Herald v. Tornillo case as an example of why the new law won’t pass constitutional muster. The Supreme Court “has repeatedly held that digital media enjoy the same First Amendment protection as traditional media,” they wrote.

“Only once has the Supreme Court upheld a ‘fairness’ or ‘equal time’ mandate on privately owned media. But that was a special case,” they wrote. “In 1969, Red Lion Broadcasting Co. v. FCC upheld the Federal Communication Commission’s Fairness Doctrine only because broadcast frequencies are scarce, they are owned by the public, and the government licenses their use—clear ‘state action.'”

DeSantis’ argument that Big Tech companies are monopolistic is similar to an argument rejected in the 1974 case, they wrote. “The plaintiff in Miami Herald made a similar argument—and, indeed, many local markets really did have only a single newspaper,” Barthold and Szóka wrote. “Yet the court ruled that no degree of monopoly power could diminish the First Amendment’s protection of newspapers’ editorial discretion.”

Section 230 also protects websites

Wyden pointed out that Section 230 of the Communications Decency Act is also relevant. That US law gives legal immunity to online platforms that block or modify content posted by users.

“The First Amendment to the United States Constitution—backstopped by Section 230—makes it abundantly clear that states have no power to compel private companies to host speech, especially from politicians,” Wyden said. “People eager to chip away at core First Amendment protections for speech must remember that the consequences won’t just impact content they dislike—they’ll apply to everything. Government control of speech on, or off-line, will inevitably be abused by those in power, as made crystal clear by Republican state legislatures at home, and governments abroad like India and China that are already censoring critics.”

https://arstechnica.com/?p=1767478