Social Media

Florida Legislators Exempt Their Favorite Companies From Social Media Bill

"It's very obvious that nobody involved in [the bill] consulted a First Amendment lawyer," says TechFreedom's Berin Szóka.

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Florida lawmakers have done Republican Gov. Ron DeSantis' bidding by passing a bill that would forbid social media companies from deplatforming candidates who are running for office. But an exception tossed in the bill to exempt certain major companies like Disney and Comcast highlights the bill's many legal and constitutional issues.

The bill, S.B. 7072, would allow for fines of up to $250,000 per day for candidates for statewide offices, $25,000 a day for lower offices if an online platform refuses to host a candidate. The bill also prohibits shadow banning, the practice of allowing a person to continue using the platform while limiting who can see their posts, for political candidates during their races. There's an exception carved out for obscene content. The bill covers online platforms that have annual gross revenues of at least $100 million or at least 100 million global users.

DeSantis is expected to sign the bill, which is scheduled to go into effect on July 1, but will almost certainly be challenged in court.

The bill is getting the most media attention for this political component, essentially ordering private online tech companies to serve the communication needs of politicians. Critics of the legislation argue it's a violation of the First Amendment rights of tech companies, who have the power to decide whose messages they want to host. The bill attempts to get around this concern by simply declaring that social media companies "should be treated similarly to common carriers" like phone companies, an argument some find compelling.

On April 29, just prior to the bill's passage, its sponsor, state Sen. Ray Rodrigues (R–Lee County) amended the bill to exempt any system "operated by a company that owns and operates a theme park or entertainment complex." This is clearly a carveout for Disney, whose power to influence legislation in the state is hard to overstate. It will also most certainly cover any site run by cable juggernaut Comcast, which owns the Universal Studios Theme Parks, one of which is also in Orlando.

One of the bill's sponsors, state Rep. Blaise Ingoglia (R–Spring Hill) said the quiet part out loud when asked about it—that they wanted to make sure certain companies with big economic footprints in Florida "aren't caught up in this." The obvious conclusion is that the bill wants to control what some companies do but not other similarly situated companies who have online platforms that would potentially be affected.

"The theme park thing is going to kill this bill [in court]," Berin Szóka, president of technology think tank TechFreedom, tells Reason. Szóka explained in detail in March over at Lawfare why the proposed ban on deplatforming was unconstitutional and trampled on the First Amendment rights of media and tech companies. Lawmakers' choice to exempt major Florida-based companies clarifies that their goal is to control private speech. Szóka says judges will see right through what lawmakers are attempting to do.

"First Amendment scrutiny is largely about avoiding the abuse of the law against editorial decisions politicians don't like," Szóka says. "It's very obvious that nobody involved in [the bill] consulted a First Amendment lawyer. It becomes very obvious the purpose of the bill is to target certain companies and ignore others."

Szóka has noted a host of Supreme Court decisions that upheld the right of private companies to refuse to carry speech, even in cases where monopoly control over communication platforms was alleged. In the case of Miami Herald Publishing Company v. Tornillo, the Supreme Court unanimously struck down a Florida law that mandated newspapers provide space for political candidates to respond to criticism about them. Szóka wrote:

The court has repeatedly held that digital media enjoy the same First Amendment protection as traditional media. DeSantis counters that Big Tech companies are monopolistic. The plaintiff in Miami Herald made a similar argument—and, indeed, many local markets really did have only a single newspaper. Yet the court ruled that no degree of monopoly power could diminish the First Amendment's protection of newspapers' editorial discretion.

Many critics of Big Tech—not only DeSantis but also politicians in other states, such as Texas, that are considering bills similar to Florida's—have used terms like "town square" and "public forum" in arguing that the First Amendment constrains, rather than protects, the editorial discretion of large websites. But social media platforms, even big ones, do not qualify as "public fora," in the technical legal sense, because they don't do anything traditionally and exclusively done by the government—like running literal town squares. "Merely hosting speech by others is not a traditional, exclusive public function," Justice Brett Kavanaugh wrote for the court in 2019, "and does not alone transform private entities into state actors subject to First Amendment constraints." In February 2020, the U.S. Court of Appeals for the Ninth Circuit affirmed that YouTube is not a public forum under this definition.

S.B. 7072 would also forbid social media companies from deplatforming, censoring, or concealing posts by media outlets on the basis of content. So, for example, this bill would hold Twitter liable for its October 2020 decision to block the posting of links to a New York Post story about Hunter Biden, which content moderators alleged was misleading. The Florida bill would actually force private social media companies to host messages from other private media companies, even if a social media company's administrators believe the messages are misleading, dangerous, or in violation of their own policies.

S.B. 7072 also contains a concerning provision that would establish an "antitrust violator vendor list." Companies convicted of antitrust violations will reportedly be placed on a list, and may not get contracts or do business with any public agency in the state. But further down in the bill there's a nasty twist: The state's attorney general can temporarily add a company to the list on the basis of merely being accused of or charged with antitrust violations, based on simply determining the state has "probable cause" that the violation occurred—an extremely low evidentiary threshold.

"The point is that when Republican state AGs file bullshit antitrust suits that are never going to go anywhere or [may] get tied up in court for years, it will still allow the Florida attorney general to use that as a predicate for some legal action," Szóka says. "The point isn't to get that judgment. It's to drag the company through the process so you have another circle for your political theater. It's a weapon. That's the whole point."

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  1. I’m going to guess that that theme park exception is in there to prevent the bill from being missapplied by the courts. Nothing described in this article would have applied to Disney or Comcast in the first place, as neither runs social media platforms, so the only reason to put it in there is to prevent some local DA and judge from creatively redefining social media platforms. Surprising amount of forethought from a politician.

    But yeah, I’m not surprised to see this. Threats of government force against social media companies worked. The left has successfully bullied, threatened, and harassed private companies using governed force, into pushing out any one in power that would be against censoring inconvenient facts. We didn’t get a monolith of group think at the top organically, give credit where it is due. It took the dems a hell of a lot of effort to get to this point.

    1. Actually, both of them run social media platforms. Disney’s aren’t ones you’d typically think of as in the target audience for politicians but they still meet every other definition of a social media platform.

      Social media is a very broad concept. Every privately hosted website that allows visitor comments is a social media site. The size limits probably keep you from having to comply for your personal blog – until you post a video that goes viral.

      1. Now see, I’m gong to have to argue that merely allowing comments doesn’t make you a social media site. In the same way that leaving a mint on the pillow alone wouldn’t make a hotel a resteraunt. At a minimum, you’d need a websites core function (bad wording, but can’t think of a better one right this second) to be centered on user generated content to be counted as social media.

        More controversially, I’d also say forums, even big ones like Reddit, aren’t social media platforms. Though I’d need to put more time into parsing out what pattern my brain is subconsciously recognizing as the difference to tell you why.

        1. Heres how Cambridge English Dictionary defines social media:

          noun [ U or plural ]

          UK 

           /ˌsəʊ.ʃəl ˈmiː.di.ə/ US 

           /ˌsoʊ.ʃəl ˈmiː.di.ə/

          websites and computer programs that allow people to communicate and share information on the internet using a computer or mobile phone:

          Companies are increasingly making use of social media in order to market their goods.

          And another definition from Merriam Webster:

          forms of electronic communication (such as websites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages, and other content (such as videos).

          1. Those definitions are as terrible as Illocust’s ad hocs and, coming from Cambridge English Dictionary, should be embarassing.

            websites and computer programs that allow people to communicate and share information on the internet using a computer or mobile phone

            So my network card drivers are social media? My email client is social media?

            It’s like defining a telephone as anything that facilitates phonic communication over great distances. Radios are telephones, satellites are telephones, telegraphs and even copper wire are telephones.

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    2. And it should be noted, actually reading through the bill, that it’s exceedingly weak in terms of compelling social media platforms to carry speech they don’t like. They still have the ability to refuse up front. They still have the ability to refuse any media organization’s story on an organization or thematic level. They can still even ban them for up to 60 days for specific content and, even then, after 60 days, are only required to return or make available the posted assets back to the creator.

      Pretty much, the bill only really prevents platforms from permanently banning a candidate and then saying, “Whoops! We didn’t know they were a candidate.” and not returning their posts/data.

  2. “The state’s attorney general can temporarily add a company to the list on the basis of merely being accused of or charged with antitrust violations, based on simply determining the state has “probable cause” that the violation occurred—an extremely low evidentiary threshold.”

    So the “Kavanaugh threshold”?

    1. No, that would be ‘credible allegation’.

  3. I need a “mute author” button plz, devs.

  4. Jesus what a full throated defense of trillion dollar companies and the amoral billionaires running them as they trample all over others and stumble about trying to defend the hard core leftists who violate their rules.

    Mute User if you like.

    1. Sorry, as libertarians we believe the government does not have the right to micromanage *any* business, even ones owned by those icky billionaires

      1. Except if it involves baking cakes, or any other exceptions for specific types of people.

        1. That does not belong to libertarians.

          1. The commentary did not forget reasons sins. Especially when they come to hypocrisy.

  5. Twitter’s blocking of the New York Post column on the basis of the being misleading has since been proven wrong and is an excellent example of bad faith moderation in a likely attempt to influence an election.

    1. And could probably be a grounds for a libel or defamation lawsuit if section 230 didn’t exempt Twitter from every other law on the books.

      1. lmao no it wouldn’t, whether or not section 230 existed

        1. Twitter was actively causing economic harm to the New York Post by throttling viewership of an article and made demonstrably false claims about the article and about the New York Post to justify it. This would be a textbook case if section 230 wasn’t a “get out of lawsuit free” card.

    2. The suppression of that true story by multiple media outlets was absolutely a factor in the 2020 election.

      1. Huh? Guiliani is likely headed to prison for colluding with fascist govts to interfere in our election. You got head up your ass.

        1. Gullible is as gullible does.

  6. What a surprise. DeSantis is a fascist piece of shit.

    1. “What a surprise. DeSantis is a fascist piece of shit.”

      In a related story, he signed the bill adding new restrictions to how elections are run in Florida (after declaring that the state did wonderfully in 2020) in a private location, barring all reporters from being present and filming it except for Fox News. His people were handing out buttons and the like for his reelection campaign as well.

      This the Trumpified GOP. Democracy and freedom for me but not for thee.

  7. “It’s very obvious that nobody involved in [the bill] consulted a First Amendment lawyer,” says TechFreedom’s Berin Szóka.

    Do they have to consult a ‘First Ammendment Lawyer’ or can they just follow the lead of a professor of Constitutional Law?

  8. I’d like to know the full story behind how Disney and Comcast got their special exemption. Congress should subpoena these mfers find out what happened. If I was Disney I’d be embarrassed to accept any favors from these Republican fascist crooks.

    1. Disney World might have a little something to do with it.

    2. If I was Disney I’d be embarrassed to accept any favors from these Republican fascist crooks.

      If I were Disney I’d still be embarassed about giving George Lucas a small mountain range of money in exchange for Jaqueline Kennedy. Once I got over that embarassment, I’d be embarassed about Brie Larson. After that, I’d probably stop being embarassed and just acknowledge that I routinely fuck shit up.

  9. Florida lawmakers have done Republican Gov. Ron DeSantis’ bidding by passing a bill that would forbid social media companies from deplatforming candidates who are running for office. But an exception tossed in the bill to exempt certain major companies like Disney and Comcast highlights the bill’s many legal and constitutional issues.

    Disney and Comcast are social media companies?

  10. Also:

    (c) “Deplatform” means 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 60 days.

    (i) A social media platform must allow a user who has been deplatformed to access or retrieve all of the user’s information, content, material, and data for at least 60 days after being deplatformed.
    (j) A social media platform may not take any action to censor, deplatform, or shadow ban a journalistic enterprise based on the content of its publication or broadcast. Post prioritization of certain journalistic enterprise content based on payments to the social media platform by such journalistic enterprise is not a violation of this paragraph.

    Wow! A bill to end the 1A that protects journalists to a greater degree than it protects *private* political *candidates* (in one state)? Existential threat to democracy indeed! (Fucking Emote magazine).

  11. The bill attempts to get around this concern by simply declaring that social media companies “should be treated similarly to common carriers” like phone companies, an argument some find compelling.

    Or “common carriers” like Typhoid Mary?

  12. I’m pleasantly surprised to see some actual libertarians in the comment section come out against this.

    It’s absolutely ridiculous that any company should be forced to carry any politician, especially those breaking the rules of the platform itself.

    1. Agreed! “Special rules (laws) for special people” stinks to the Highest Heavens, even when (especially when, for no good reason) “special people” are politicians!

  13. Conservative virtue signalling. Also serves the purpose of being able to say “Look at these corrupt courts” when the courts rule against them on First Amendment grounds. Delegitimizing courts is a key authoritarian takeover tactic.

    1. “Delegitimizing courts is a key authoritarian takeover tactic.”

      The only legitimate judges are conservative judges. Didn’t you know that? Btw, you can tell a proper conservative judge from illegitimate judges by how they will rule however conservative voters want them to rule.

  14. (5) This section may only be enforced to the extent not inconsistent with federal law and 47 U.S.C. s. 230(e)(3), and notwithstanding any other provision of state law.

    So, S230 still stands. They can still moderate as they see fit. What they cannot do is take a single post/tweet from any political candidate as justification for shutting the account down and holding the candidates content assets indefinitely. It would be nice if S230 didn’t exist at all so that the underlying principle of these special protections was moot, but when you go around wearing your shortest “S230 is the 1A of the internet” skirt, don’t be surprised if you get molested.

  15. social media needs to obey the Bill of Rights…time to shut them down if they don’t. All speech matters.

    1. When legislators define “social media” in a way that excludes companies that have political clout with them, then it is clear that they are just upset that they aren’t able to control social media companies. If they really wanted to uphold individual rights, they’d make the rules apply to everyone.

  16. Don’t know why they keep messing around with these laws that they know won’t stand up to scrutiny. Why not use the one thing they know they have the power to use, the power of the purse? If they forbid any state entity from using the site that would hurt them more. Every school and major department has a Facebook page, if they moved to MeWe and dropped the Facebook site that would hit them hard. Right now everyone (well not me) is on Facebook and most people will not even consider another site, not because it is better or worse but because they are used to the one they have and don’t know anything about the other. It was the same reason some people kept AT&T phones years after the breakup even though they cost more and had less functionality, it was what they were used to and they had no experience with something else.

    Now I don’t know if MeMe (or any other site) is any better or worse than Facebook or if Gab or Parler is better or worse than Twitter as I don’t get onto these sites but if others are not just allowed but are forced by the mere fact that their child’s school or their local government is on one of these site to use them they might find them easier and decide to switch and that more than ineffective punitive laws that will be overturned by the courts. Remember these are publicly traded companies and if they start losing enough value the board of directors will step in eventually and change these policies.

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