Will Florida’s New Social Media Law Stand?

Will Florida’s New Social Media Law Stand?

On Monday, Republican Gov. Ron DeSantis signed into law, a legislation that will make it illegal for social media platforms and any of the big tech, to ban anyone in Florida.

The legislation, termed Stop Social Media Censorship Act, was prompted by allegations of marginalization on social media by conservatives, who believe that the “Big Tech” has been working on the side of the left to silence their members. Thus, it has become illegal for large technology companies to remove candidates for office from their platforms in the run-up to an election. It would also make it easier for Florida’s attorney general and individuals to sue “Big Tech.”

“These platforms have become our public square,” DeSantis, who touted the legislation as first of its kind, said at a lectern with a sign that read “STOP Big Tech Censorship,” noting that “Big Tech oligarchs” have censored debates about the pandemic and policies that officials put in place to contain the deadly virus, such as lockdowns.

“Silicon Valley is acting as a council of censors; they cancel people when mobs come after somebody. They will pull them down,” he said.

Under the legislation, users that post content against any platform’s rule would have 30 days to continue using the platform before getting kicked off, DeSantis explained.

The legislation says any user who has been de-platformed would be allowed access to retrieve all of their information and content.

Any platform that removes a candidate without giving them 30 days warning may be fined up to $250,000 per day if those individuals are running for a statewide office and up to $25,000 per day if they are running for any other office. DeSantis said courts may award up to $100,000 in damages for each proven claim.

“We are protecting Floridians’ ability to speak and express their opinions. This will lead to more speech, not less speech because speech that’s inconvenient to the narrative will be protected,” he said.

This move by Republican states to outlaw deplatforming of social media users got a push after Twitter, Facebook, Instagram and YouTube banned former president Donald Trump, and Amazon kicked Parler, a conservative social platform, out of its platform, following the Jan. 6 Capitol insurrection.

A flurry of opposition greeted the decisions of the Big Tech, instigating a move for state laws that will criminalize such actions in the future.

But the legislation, which is likely going to be challenged in court, has a little chance to be enforced.

“This is so obviously unconstitutional, you wouldn’t even put it on an exam,” said A. Michael Froomkin, a law professor at the University of Miami.

Under well established Supreme Court precedent, the First Amendment prohibits private entities from being forced to publish or broadcast someone else’s speech. Prohibiting “deplatforming” of political candidates would likely be construed as an unconstitutional must-carry provision.

“This law looks like a political freebie,” Froomkin said. “You get to pander, and nothing bad happens, because there’s no chance this will survive in court.”

The Section 230 of the Communications Decency Act, a federal law that generally holds online platforms immune from liability over their content moderation decisions, is another reason why Florida’s law may not make it out of court.

Section 230, just like other federal status, makes any state law that conflicts with it void. That means, any attempt to enforce the Florida new law would be futile.

During his presidency, Trump had attempted to quash Section 230 using executive order, after Twitter labeled his tweet prior to his ban. Social media platforms retain the right “to restrict access to or availability of material” as long as they do so in good faith, under the Section 230.

However, there is a question of whether the right to moderate “free speech,” which has been the bone of contention, is protected by the First Amendment.

TechCrunch noted that while there is a great deal of circumstantial precedent and analysis, the problem of “are moderation practices of social media companies protected by the First Amendment” is as yet unsettled. Legal scholars and existing cases fall strongly on the side of “yes,” but there is no single definitive precedent that Facebook or Twitter can point to.

The First Amendment argument starts with the idea that although social media are very unlike newspapers or book publishers, they are protected in much the same way by the Constitution from government interference.

“Free speech” is a term that is interpreted extremely liberally, but if a company spending money is considered a protected expression of ideas, it’s not a stretch to suggest that the same company applying a policy of hosting or not hosting content should be as well. If it is, then the government is prohibited from interfering with it beyond very narrow definitions of unprotected speech (think shouting “fire” in a crowded theater). That would sink Florida’s law on constitutional grounds.

While the new law appears to stand no chance in court, it is likely going to put the First Amendment to test.

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