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Tech Trade Groups Sue Over Florida’s New Social Media Law (2)

May 27, 2021, 6:50 PMUpdated: May 27, 2021, 8:42 PM

A new Florida law penalizing social media companies that bar political candidates from their platforms is unconstitutional and conflicts with federal communications law, digital services trade groups said in a lawsuit Thursday.

The law is “a frontal assault on the First Amendment and an extraordinary intervention by the government in the free marketplace of ideas that would be unthinkable for traditional media, book sellers, lending libraries, or newsstands,” according to the lawsuit filed by attorneys for the Computer & Communications Industry Association and NetChoice, whose members include Twitter and Facebook.

Under the law (S.B. 7072), signed May 24 by Republican Gov. Ron DeSantis, a social media company could face $250,000 in daily fines for blocking a statewide candidate for more than 14 days. Suspension of social media privileges of candidates in local elections would carry up to a $25,000-per-day fine for the companies.

The law, which takes effect July 1, also would let an individual seek up to $100,000 in damages if he or she claims a platform’s content standards were inconsistently applied to the user’s posts.

Its restrictions on content moderation violate the social media companies’ free speech “by compelling them to host—and punishing them for taking virtually any action to remove or make less prominent—even highly objectionable or illegal content, no matter how much that content may conflict with their terms or policies,” the lawsuit, filed in the U.S. District Court for the Northern District of Florida, said.

The complaint against Florida’s attorney general and members of the Florida Elections Commission asks a judge to stop the law from taking effect.

“The irony, of course, is that Gov. DeSantis is saying that this is a free expression problem, but mandating that companies carry dangerous speech that they disagree with is itself a First Amendment transgression,” Matt Schruers, the CCIA president, said in a phone interview before the lawsuit’s filing.

The law includes exemptions for “journalistic enterprises” and companies that own theme parks—a carve out that would apply to Disney, a big part of Florida’s tourism economy.

Legislative Priority

Penalizing social media companies for what he called “censorship” of conservative speech was a DeSantis priority this year.

He cited Twitter’s permanent suspension of former President Donald Trump, and YouTube’s removal of a panel DeSantis hosted with scientists who opposed masks and business closures during the pandemic, to contend that regulation was needed.

“It is recognized that government has a role in protecting consumers against discrimination and deceptive/unfair trade practices, and this law is within that authority to rein in a powerful entity that oversteps individuals’ free speech rights,” Christine Pushaw, DeSantis’ spokeswoman, said in an emailed statement Thursday.

“We have no comment on any specific lawsuit, but we anticipated legal challenges. We are confident that this new legislation has a strong legal basis and protects Floridians’ constitutional rights,” she said.

But the law threatens social media companies’ terms of service, which helps users decide whether to join or allow their children to use social media platforms, said Schruers, who teaches at Georgetown Law. The law will prevent those companies from removing extremist propaganda, health misinformation, or content promoting self-harm, he said.

CCIA and NetChoice members also include Amazon, Google, and Pinterest.

The trade groups are represented by the law firms DLA Piper LLP, Wilson Sonsini Goodrich & Rosati, P.C., and Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.

‘Unfettered’ Free Speech

The conservative think tank Heartland Institute praised the law for “revealing where some elected officials’ loyalties lay,” it said in a statement. “This legislation is the first step in the right direction to returning to an America where free speech is unfettered.”

Lawmakers in Louisiana (S.B. 196) and Texas (S.B. 12) are debating allowing individual users to sue social media platforms that remove them and their content. But similar efforts failed in several states this year, including a Utah bill (S.B. 228) vetoed by the governor.

The measures, including Florida’s, are “brazenly unconstitutional” and pitched as “a sort of performative act for voters,” said Amy Kristin Sanders, an attorney and professor of media law at the University of Texas at Austin.

The trade groups’ members anticipate facing lawsuits from the state or private litigants “immediately after the law goes into effect because they are engaging in and intend to continue engaging in moderation activity,” the lawsuit said.

The case is NetChoice LLC v. Moody, N.D. Fla., No. 4:21-cv-00220, 5/27/21

(Updates with comment from DeSantis' spokeswoman.)

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

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergindustry.com; Meghashyam Mali at mmali@bloombergindustry.com

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