Florida's Social Media Law: A First Amendment Challenge

Florida's New Law Challenging Social Media Companies

Governor Ron DeSantis of Florida has enacted legislation that restricts social media platforms from banning political candidates running for state office and news organizations. This action directly contests the companies’ asserted rights regarding free speech principles.

The law, designated Florida Senate Bill 7072, introduces several new regulatory measures concerning technology and social media companies. Key provisions include:

• Platforms are prohibited from banning or diminishing the visibility of candidates vying for state-level positions.
• News outlets that meet specified criteria regarding size and reach cannot be banned or deprioritized by platforms.
• Platforms are required to operate with transparency in their moderation procedures and provide users with clear notification of any moderation actions taken.
• Users, as well as the state of Florida, are granted the legal standing to initiate lawsuits against companies found in violation of the law. Potential statutory penalties could reach $250,000 per day for certain infractions.

The legislation clearly defines new rules governing the moderation practices of these companies. However, whether these actions constitute government censorship – distinct from the general concept of content limitation – remains an open question, likely to be resolved through legal challenges to SB 7072.

The First Amendment Debate

Despite extensive analysis and existing precedents, the question of whether social media moderation practices are protected under the First Amendment remains unsettled. While legal experts and prior cases generally support the idea of such protection, there is no definitive ruling that companies like Facebook or Twitter can definitively rely upon.

The First Amendment argument posits that, despite their differences from traditional publishers, social media platforms are entitled to similar constitutional protections against government interference. The interpretation of “free speech” is broad, and if a company’s financial expenditures are considered a protected expression, it logically follows that its policies regarding content hosting should also be protected.

If this holds true, government intervention in these policies would be limited to narrowly defined categories of unprotected speech. This would likely invalidate Florida’s law on constitutional grounds.

Conflict with Federal Law: Section 230

The law also clashes with federal legislation, specifically Section 230. This provision shields companies from liability for content posted by users, while simultaneously granting them the autonomy to moderate content according to their own rules. Senator Ron Wyden, a co-author of Section 230, describes this as providing companies with both a “shield and a sword” to manage speech on their platforms.

SB 7072 effectively removes both of these protections. It restricts who can be moderated and establishes a new legal avenue for challenging the companies’ remaining moderation practices.

Disagreements between federal and state laws are common, and there is no established method for resolving them. Instances like federal raids on state-legal marijuana businesses contrast with the preservation of stronger state-level consumer protections over weaker federal standards.

Regarding Section 230, the question of who is being protected is complex. Florida’s government asserts it is safeguarding “real Floridians” from “Silicon Valley elites.” However, these companies will likely argue that the law represents a clear instance of government overreach and censorship.

Legal Challenges Expected

These substantial legal objections will undoubtedly fuel lawsuits from the affected companies, likely filed before the law takes effect, seeking to have it overturned.

A Notable Exemption

Interestingly, two of the world’s largest and most powerful corporations – Disney and Comcast – are exempt from the law’s provisions. This is due to a specific exemption for any company “that owns and operates a theme park or entertainment complex” meeting certain size requirements.

This exemption creates a clear exception for Disney and Comcast, which owns Universal Studios. The inclusion of this provision through an amendment suggests that these major employers in the state expressed concerns about potential liabilities for their digital properties.

This apparent favoritism towards local corporate donors undermines the ethical standing of the law’s proponents in their stated fight against elites. However, the legal challenges, likely already in preparation, may render this debate moot with a request for an injunction against SB 7072.