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Florida Lawmakers Move to Include Disney Under Tech Limits (1)

April 20, 2022, 9:30 AMUpdated: April 20, 2022, 5:50 PM

Florida’s governor may be able to impose swift retribution against Walt Disney Co. for publicly disagreeing with the state’s “don’t say gay” education law.

Republican Ron DeSantis, who’s running for a second term as governor, asked lawmakers to remove a Disney exemption they wrote into a social media law last year. A Florida House vote is all that’s needed to give the governor what he wants, after the Florida Senate on Wednesday passed the legislation sought by DeSantis (S.B. 6C).

The social media law (S.B. 7072) permits fines of $250,000 a day when candidates for statewide office are blocked from using their accounts for more than 14 days. Blocking candidates in local elections would carry a $25,000 daily fine.

That law—which isn’t being enforced after a federal court ruled it’s unconstitutional—was written to specifically exclude social media platforms of companies that also own or operate a Florida theme park or entertainment complex.

The entrance to the Magic Kingdom theme park at Walt Disney World Resort in Orlando, Fla., in a 2020 photo.
Photographer: Charlotte Kesl/Bloomberg

That theme-park exemption would disappear should an appeals court reverse that decision—a real possibility since a challenge is being argued in the U.S. Court of Appeals for the Eleventh Circuit.

Repealing Disney’s exemption would show the judges that lawmakers and the governor intend for the social media law “to apply to all entities evenly,” Sen. Jennifer Bradley (R) said on the Senate floor. “This is a good bill that should not be controversial” because of the previous court ruling, she said.

In ordering a preliminary injunction last year, U.S. District Judge Robert Hinkle wrote that the law violated the First Amendment and didn’t apply equally to all social media providers.

“Despite the obvious constitutional issue posed by the exclusion, the Legislature adopted it, apparently unwilling to subject favored Florida businesses to the statutes’ onerous regulatory burdens,” Hinkle wrote. “It is a stretch to say the severability clause allows a court to impose these burdens on the statutorily excluded entities when the Legislature has not passed, and the Governor has not signed, a statute subjecting these entities to these requirements.”

See also: DeSantis Rush to Battle Disney Puts $1 Billion Debt in Question

Disney doesn’t currently operate a social media platform comparable to Twitter, Facebook, or YouTube—all platforms DeSantis criticized in pushing for the restrictions.

The state’s definition of social media platform in the law includes “any information service, system, Internet search engine, or access software provider that provides or enables computer access by multiple users to a computer server, including an Internet platform or a social media site,” and has annual gross revenues over $100 million or at least 100 million monthly individual platform participants globally.

Lawmakers now seek to remove language declaring that the definition of “social media platform” doesn’t include “any information service, system, Internet search engine, or access software provider operated by a company that owns and operates a theme park or entertainment complex.”

Governor’s Anger

Oral arguments in the case are set for next week. There was no indication that the court schedule inspired DeSantis to act.

He expanded a special session to add bills on just two topics: erasing the Disney exemption from the social media law, and ending a special status Disney has had for decades that gives it access to tax-exempt financing.

DeSantis has criticized the entertainment giant, which is one of Florida’s biggest employers, for its opposition to a law he signed limiting instruction about gender identity and sexual orientation in kindergarten through third grade.

“This has nothing to do with the case that he lost—that he will continue to lose because it’s clearly unconstitutional,” Sen. Tina Polsky (D) said Tuesday in committee. “He’s punishing Disney.”

“The governor’s anger was well placed, and we’re happy to take it up,” House Speaker Chris Sprowls (R) told reporters Tuesday in Tallahassee, Fla., adding that legislators have discussed changing Disney’s special state benefits for a long time.

Texas Case

Repealing three lines that apply to Disney might not make any difference to the court’s treatment of the social media law.

A similar law in Texas with no exemption for Disney was ruled unconstitutional, said Carl Szabo, vice president and general counsel of NetChoice, one of the tech trade groups that sued after DeSantis signed it.

“Regardless of whether the Florida legislature takes out the Disney exemption, the law is still flagrantly a violation of the First Amendment,” he said in an email.

NetChoice members include Twitter Inc., Facebook Inc., Amazon.com Inc., Google, and Pinterest, but not Disney.

The case is NetChoice LLC v. Attorney General, State of Florida, 11th Cir., No. 21-12355.

(Updates with Senate's vote and additional information about legislation. )

To contact the reporter on this story: Jennifer Kay in Miami at jkay@bloomberglaw.com

To contact the editors responsible for this story: Katherine Rizzo at krizzo@bgov.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Tina May at tmay@bloomberglaw.com