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."