Florida governor Ron DeSantis has signed into law a restriction on social media companies’ ability to ban candidates for state offices and news outlets. Doing so offered a direct challenge to those companies’ perceived free speech rights. The law is almost certain to be challenged in court as unconstitutional and in direct conflict with federal rules.
The law, Florida Senate Bill 7072, provides several new checks on tech and social media companies. Among other things:
- Platforms cannot ban or deprioritize candidates for state office
- Platforms cannot exclude or deprioritize any news outlet meeting specific size requirements
- Platforms must be transparent about moderation processes and give users notice of moderation actions
- Users and the state will have the right to sue companies that violate the law
The law establishes rules affecting these companies’ moderation practices; that much is clear. But whether doing so amounts to censorship — actual government censorship, not the general concept of limitation frequently associated with the word — is an open question, if a somewhat obvious one, that will likely be forced by legal action against SB 7072.
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 firmly 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 exceptionally liberally. Still, suppose a company spending money is considered a protected expression of ideas. In that case, 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, 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.
The other conflict is with federal law, specifically the much-discussed Section 230, which protects companies from being liable for the content they publish (i.e., the creator is responsible instead), and the choice to take down content via rules of their own choosing. As the law’s co-author Senator Ron Wyden (D-OR), has put it, this gives those companies both a shield and a sword with which to do battle against risky speech on their platforms.
But SB 7072 removes both sword and shield: it would limit who can be moderated and creates a novel cause for legal action against the companies for their remaining moderation practices. Federal and state laws are often in disagreement, and there is no handbook for reconciling them. On the one hand, witness raids of state-legalized marijuana shops and farms by federal authorities. On the other, observe how strong consumer protection laws at the state level aren’t preempted by weaker federal ones because to do so would put people at risk.
On the matter of Section 230, it’s not straightforward who is protecting whom. Florida’s current state government claims to protect “real Floridians” against the “Silicon Valley elites.” But no doubt those elites (and let us be candid — that is precisely what they are) will point out that, in fact this is a clear-cut case of government overreach, censorship in the literal sense. These strong legal objections will inform the inevitable lawsuits by the companies affected, which will probably be filed ahead of the law taking effect and aim to have it overturned.
Interestingly, two companies that will not be affected by the law are two of the most giant, uncompromising corporations globally: Disney and Comcast. Why you ask? Because the law has a special exemption for any company “that owns and operates a theme park or entertainment complex” of a specific size.
That’s right, there’s a Mouse-shaped hole in this law — and Comcast, which owns Universal Studios, just happens to fit through as well. Notably, this was added in an amendment, suggesting two of the largest employers in the state were unhappy at the idea of new liabilities for any of their digital properties.
This naked pandering to local corporate donors puts proponents of this law at something of an ethical disadvantage in their righteous battle against the elites. Still, favor may be moot in a few months when the legal challenges, probably being drafted at this moment, call for an injunction against SB 7072.