On Monday, Florida Gov. Ron DeSantis signed a bill that—in a first for state law—regulates how social media companies can moderate online speech.
Under the Stop Social Media Censorship Act—which experts have already pointed out is likely unenforceable, given that it violates Section 230 Communications Decency Act and, arguably, the First Amendment—social media sites will be fined $250,000 for every day more than two weeks that a statewide political candidate is banned. The fine is $25,000 per day for sites banning candidates running for other positions. The protection is in place from a candidate’s day of qualification until the day of the election or when a candidate ends their run. It applies to users whose candidacy can be verified through the Division of Elections website, or through the website of a supervisor of elections. The law also states that social media companies cannot choose to limit or promote content from news outlets of a certain size.
The law comes in direct response to two actions by Facebook and Twitter: banning former President Trump from their platforms—a decision that Facebook’s Oversight Board recently voted to uphold, at least for the next six months—and limiting the reach of a New York Post article about Hunter Biden’s alleged laptop.
In a statement, DeSantis harped on the widespread belief by conservatives that social media sites are biased against them, claiming that these sites “discriminate in favor of the dominant Silicon Valley ideology.” This is despite the fact that a recent report from the New York University Stern Center for Business and Human Rights has found that claims about social media’s anti-conservative bias are “based on distortions and falsehoods.” Research from Politico and the Institute for Strategic Dialoguehas even found that “a small number of conservative users routinely outpace their liberal rivals and traditional news outlets in driving the online conversation.”
The Stop Media Censorship Act is one of more than 100 bills introduced nationwide this year targeting the speech and moderation decisions of social media platforms. So far, Florida’s version of the bill has been the only one to pass, which is unsurprising given the slew of GOP talking points that have become Florida law in recent months. These include an “anti-riot” law that opens the door to criminalizing public gatherings of more than three people and allows drivers to ram into protesters with their cars if they claim they felt unsafe, and a new law restricting voting, which critics have called “an anti-democracy, anti-voter bill.”
Exempt from the Stop Media Censorship Act— is one of the state’s largest employers, the Walt Disney Corp. More specifically, companies that own a theme park or entertainment venue larger than 25 acres aren’t subject to the law. In Florida, that includes Disney, which owns the Walt Disney World Resort, and Comcast, which owns Orlando’s other major theme park, the Universal Studios Resort. (If Facebook or Google announces plans to open a theme park in Florida any time soon, you’ll know why.)
Like the rest of the proposed social media “censorship” bills, should they pass, the new Florida legislation will most likely be shut down in court.
Section 230 of the Communications Decency Act guarantees legal immunity to social media sites and other websites that choose to moderate and regulate the content they publish or broadcast. That includes protections for social media companies regulating hate speech or banning users who violate their community guidelines. As a federal law, Section 230 also preempts any state law that attempts to wear down those protections, as Florida’s social media legislation does.
Florida’s new law also conflicts with the First Amendment, which, according to Supreme Court precedent, protects social media companies from being compelled to publish someone else’s speech. This gives companies like Twitter and Facebook the right to ban users who violate their guidelines, like Trump, and makes it unconstitutional for a government like Florida’s to force platforms to continue to house these users’ content. Furthermore, because the First Amendment protects individuals from having their speech regulated by state or federal governments, not private companies, for a social media company to ban a political candidate from their platform is not a violation of that candidate’s First Amendment rights—despite what conservatives may claim.
Democratic Sen. Ron Wyden of Oregon, who was one of the authors and original co-sponsors of Section 230, said in a statement that Florida’s new social media legislation is an “invitation for extremists, racists and liars to register as political candidates just to keep their posts online.”
“People eager to chip away at core First Amendment protections for speech must remember that the consequences won’t just impact content they dislike—they’ll apply to everything,” he added.
Given its questionable legality, it is unlikely that the law will find any enforcement in Florida, and is instead just an opportunity for the state’s conservative elected officials to appeal to their base. As University of Miami law professor A. Michael Froomkin told Wired, “This law looks like a political freebie. … You get to pander, and nothing bad happens, because there’s no chance this will survive in court.”