• by Wendy Davis , June 4, 2021

Florida's new social media law, which aims to prevent social platforms from “censoring” speech, will irreparably injure web companies if it goes into effect, the industry groups NetChoice and Computer & Communications Industry Association argue in new court papers.

The law unconstitutionally “strips online service providers of their First Amendment right to exercise editorial judgment over speech on their private property,” the groups say in papers filed Thursday in federal court in Tallahassee.

The law (SB 7072), signed in late May by Governor Ron DeSantis and slated to take effect on July 1, aims to prevent social media companies from “censoring” speech on their platforms.

Late last month, NetChoice and Computer & Communications Industry Association -- whose members include Amazon, Google, Facebook, TikTok and Twitter -- sued over the law. On Thursday, the organizations argued for a court order prohibiting the state from enforcing the measure.

“If the Act were allowed to go into effect as scheduled, plaintiffs’ member companies would immediately face an impossible choice: forgo exercising their First Amendment rights to moderate content, or violate the law and expose themselves to investigation, enforcement action, and massive statutory fines and penalties,” NetChoice and the Computer & Communications Industry Association write. “This loss of First Amendment rights is a paradigmatic irreparable injury.”

Among other provisions, the law subjects social media companies to fines of $250,000 per day for “deplatforming” candidates for statewide office, and $25,000 per day for other offices. (The bill defines deplatforming as banning a user for more than 14 days, or permanently deleting the users' account.)

Another provision prohibits social media companies from “censoring,” “deplatforming” or “shadow banning” journalistic enterprises, based on content.

The bill exempts companies that own theme parks in the state, provided they're at least 25 acres and draw at least 1 million visitors per year. Comcast (which owns theme parks including Universal Orlando) and Disney (owner of Walt Disney World) would both meet that definition.

DeSantis called for a crackdown on tech companies earlier this year, shortly after Facebook, YouTube and Twitter banned former President Trump following the January 6 riot at the Capitol.

DeSantis said at the time that one of his primary goals was battling “censorship” of conservatives by tech companies.

“We need to really think deeply about if we are a disfavored class based on our principles, based on having conservative views, based on being a Christian, based on whatever you can say that is not favored in Silicon Valley,” DeSantis reportedly said at a conservative conference in Texas.

There is no evidence that social media platforms are particularly likely to suppress speech by conservatives.

NetChoice and the Computer & Communications Industry Association now say the law's purpose -- a desire to crack down on tech companies over their perceived political views -- is one reason why the measure is unconstitutional.

“The Act’s supporters made no secret of their goal: to retaliate against a set of online services (pejoratively labelled 'Big Tech') for the judgments expressed through their content-moderation decisions, which those supporters consider politically distasteful,” the organizations write. “The statute’s avowed purpose is to punish disfavored, out-of-state businesses and to stop or deter them from exercising their First Amendment rights in ways the state dislikes.”

The organizations say another reason why the law should be invalid centers on its broad sweep.

“Under the Act, plaintiffs’ members are categorically prohibited from exercising any editorial judgment over (non-obscene) material posted by any 'journalistic enterprise,' and from terminating the account of a 'candidate' no matter the circumstances,” the groups write. “That means that anyone from a grand wizard of the Ku Klux Klan to a foreign intelligence agent is immune from having their account terminated after paying the modest filing fee to run for state office.”

In addition, the industry organizations say, the law's exception for theme parks “renders the Act fatally underinclusive.”

The groups add that the Section 230 of the Communications Decency Act expressly overrides state laws. Among other provisions Section 230 protects web sites from liability for their content moderation decisions.