Florida’s new social media legislation is a double landmark: It’s the first state law regulating online content moderation, and it will almost certainly become the first such law to be struck down in court.
On Monday, Governor Ron DeSantis signed into law the Stop Social Media Censorship Act, which greatly limits large social media platforms’ ability to moderate or restrict user content. The bill is a legislative distillation of Republican anger over recent episodes of supposed anti-conservative bias, like Twitter and Facebook shutting down Donald Trump’s account and suppressing the spread of the infamous New York Post Hunter Biden story. Most notably, it imposes heavy fines—up to $250,000 per day—on any platform that deactivates the account of a candidate for political office, and it prohibits platforms from taking action against “journalistic enterprises.”
It is very hard to imagine any of these provisions ever being enforced, however.
“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 governor’s office didn’t respond to a request for comment.)
The Constitution isn’t the only problem for the new law. It also conflicts with Section 230 of the Communications Decency Act, a federal law that generally holds online platforms immune from liability over their content moderation decisions. Section 230 has become an object of resentment on both sides of the political aisle, but for different reasons. Liberals tend to think the law lets online platforms get away with leaving too much harmful material up. Conservative critics, on the other hand, argue that it lets them get away with taking too much stuff down—and, worse, that it allows them to censor conservatives under the guise of content moderation.
Regardless of the merits of these critiques, the fact is that Section 230 remains in effect, and, like many federal statutes, it explicitly preempts any state law that conflicts with it. That is likely to make any attempt to enforce the Stop Social Media Censorship Act an expensive waste of time. Suppose a candidate for office in Florida repeatedly posts statements that violate Facebook’s policies against vaccine misinformation, or racism, and Facebook bans their account. (Like, say, Laura Loomer, a self-described “proud Islamophobe” who ran for Congress last year in Florida after being banned from Facebook and many other platforms.) If she sues under the new law, she will be seeking to hold Facebook liable for a decision to remove user content. But Section 230 says that platforms are free “to restrict access to or availability of material” as long as they do so in good faith. (Facebook and Twitter declined to comment on whether they plan to comply with the Florida law or fight it in court. YouTube didn’t respond to a request for comment.)
Section 230 will probably preempt other aspects of the Florida law that are less politically controversial than the prohibition on deplatforming politicians. For example, the Florida statute requires platforms to set up elaborate due process rights for users, including giving them detailed information about why a certain piece of content was taken down, and to let users opt into a strictly chronological newsfeed with no algorithmic curation. Both of these ideas have common-sense appeal among tech reformers across the political spectrum, and versions of them are included in proposed federal legislation. But enforcing those provisions as part of a state law in court would most likely run afoul of Section 230, because it would boil down to holding a platform liable for hosting, or not hosting, a piece of user-generated content. Florida’s legislature has no power to change that.
“Let’s say someone thinks Section 230 is a terrible law and allows all these companies to do terrible things—then the avenue is to change federal law,” said John Bergmayer, the legal director at Public Knowledge, a DC tech policy think tank. “I’m sorry, but this is just a messaging bill.”
Inveighing against censorship and the alleged anti-conservative bias of Big Tech has become a reliable talking point for ambitious Republican politicians. DeSantis is widely seen as a rising star in the Trump-era GOP and a contender for the 2024 Republican presidential nomination should Trump not run. Florida’s new social media law could be a nice little bullet point on his résumé. Ultimately, though, it’s just another piece of content.
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