Two tech industry trade groups have filed a suit to try and block Florida's new law that forbids social media companies from deplatforming political candidates, arguing it violates the First Amendment rights of platforms.
On Monday, Republican Florida Gov. Ron DeSantis signed into law S.B. 7072, which, among other things, threatens to fine platforms like Twitter or Facebook $250,000 for each day they refuse to host comments from candidates running for office. DeSantis has loudly been decrying "censorship" from tech companies and social media platforms that he believes are targeting conservatives. He described the bill's passage as "protection against the Silicon Valley elites."
But among the many concerns about the bill is that it requires these platforms to carry speech they might find objectionable or offensive. The First Amendment, bolstered by many, many court precedents, usually prohibits the government from mandating that a private company do this. Whether we're talking about newspapers, cake-makers, or T-shirt shops, America has a lengthy history of court cases forbidding DeSantis from doing what he's attempting to do.
A lawsuit was inevitable. On Thursday, NetChoice and the Computer & Communications Industry Association, two organizations that represent the interests of companies like Twitter, Facebook, and Google, teamed up to sue Florida in federal court, asking for the court to find the law unconstitutional for violating the First and 14th Amendments and to enjoin the state from enforcing the law.
"We cannot stand idly by as Florida's lawmakers push unconstitutional bills into law that bring us closer to state-run media and a state-run internet," NetChoice Vice President and General Counsel Carl Szabo noted in a prepared statement. "The First Amendment protects social media platforms' right to host and moderate content as they see fit for their business models and users."
The 70-page lawsuit, filed in the U.S. District Court for the Northern District of Florida, documents the many court precedents prohibiting lawmakers from forcing private companies to carry messages—from political candidates or anybody else. The lawsuit notes what is extremely obvious—that the bill "was motivated by animus toward popular technology companies—animus specifically driven by disapproval of the companies' perceived political and other viewpoints."
Republicans like DeSantis have been attempting to bypass all these constitutional concerns by attempting to categorize social media companies as "common carriers" or virtual "town squares," meaning that such platforms merely host communications and therefore shouldn't be permitted to decide what people can talk about any more than a phone company could.
The problem with such an argument, the lawsuit notes, is that these platforms are not common carriers or town squares and are, in fact, heavily moderated, often by demands of their users and even the government itself:
The openness of the Internet is a magnet for some of the best and worst aspects of humanity, and any online service that allows users to easily upload material will find some of its users attempting to post highly offensive, dangerous, illegal, or simply unwanted content. This content may be problematic in a variety of ways, including (among other things) featuring hardcore and illegal "revenge" pornography, depictions of child sexual abuse, terrorist propaganda, efforts by foreign adversaries to foment violence and manipulate American elections, efforts to spread white supremacist and anti-Semitic conspiracy theories, misinformation disseminated by bot networks, fraudulent schemes, malicious efforts to spread computer viruses or steal people's personal information, spam, virulent racist or sexist attacks, death threats, attempts to encourage suicide and self-harm, efforts to sell illegal weapons and drugs, pirated material that violates intellectual property rights, and false and defamatory statements.
The law Florida passed does provide an exception for pornography or obscenity but not these other components. So if a literal Nazi ran for office in Florida, Facebook would be legally obligated to serve as a platform for this candidate's racist comments, but newspapers or television stations could not be required to do the same.
Then there's the matter that lawmakers at the very last moment carved out an exception for major companies that own theme parks, like Disney and Comcast, which both have major presences in Florida. This decision made it pretty obvious that the law's purpose is to manipulate and potentially punish certain companies Republican politicians have it in for:
This undisguised singling out of disfavored companies reflects the Act's true purpose, which its sponsors freely admitted: to target and punish popular online services for their perceived views and for certain content-moderation decisions that state officials opposed—in other words, to retaliate against these companies for exercising their First Amendment rights…
Robert Winterton, NetChoice's director of public affairs, tells Reason he's "confident" the courts will find in the tech industry's favor. Similar bills have been introduced or debated in other states and more are likely to come. Winterton says this is the biggest bill targeting social media moderation that has actually passed into law so far. If the courts agree that Florida's law is unconstitutional, perhaps some of these efforts will subside.
"Our hope is to disincentivize states from spending money pushing laws that are blatantly unconstitutional," Winterton says.