• by Wendy Davis , Staff Writer @wendyndavis, June 15, 2021

Digital rights advocates and tech companies don't always agree with each other, but Florida's new, clearly unconstitutional social media law has managed to unite them.

The law (SB 7072), slated to take effect next month, aims to prevent social media companies from suppressing speech on their platforms.

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

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

The bill exempts companies that own large theme parks in the state -- including Comcast (which owns Universal Orlando) and Disney (owner of Walt Disney World).

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

In recent days, outside groups including the civil rights groups Electronic Frontier Foundation and Protect Democracy Project, and the Internet Association (which represents many of the largest tech companies), weighed in against the law.

“The decisions by social media platforms to cancel accounts and deprioritize posts may well be scrutinized in the court of public opinion,” the Electronic Frontier Foundation and Protect Democracy Project write in a proposed friend-of-the-court brief filed Monday with U.S. District Court Judge Robert Hinkle in Tallahassee. “But these actions, as well as the other moderation techniques barred by S.B. 7072, are constitutionally protected by binding Supreme Court precedent, and the state cannot prohibit, proscribe, or punish them any more that states can mandate editorial decisions for news media.”

Those organizations also note the law won't result in completely unmoderated platforms. Instead, it will lead to a situation where politicians' speech is treated differently than everyone else's. “The resulting asymmetry -- political candidates get to speak about themselves and issues even if they violate a platform’s rules, but their detractors and supporters who are not candidates do not -- denies users the benefits of unmoderated platforms,” the groups write.

They add that Facebook previously attempted to treat politicians' speech more favorably than other people's, but reversed course earlier this month.

“Facebook’s previous policies held political officials’ speech to a lower standard than every other user,” the groups write. “ In abandoning those rules for politicians’ speech, Facebook, as it has a legal right to do, made a policy decision that those individuals will be subject to the same content policies that Facebook applies to all its users.”

A separate friend-of-the-court brief brought by the new tech-backed group Chamber of Progress and eight other organizations points out some practical problems with the law -- including that just about anyone can pretend to run for office.

“The burden to become a candidate for office is often minimal and poses no meaningful hurdle to obtaining free rein to post as one likes,” those groups write. “But making matters worse, the Act’s text leaves open the possibility that imposters and impersonators will have a window of opportunity to post tantalizing allegations about another candidate, or the candidate an impersonator claims to be, with sufficient time for the post to go viral before a provider can take any action.”

Hinkle has ordered Florida to file papers by June 21, and plans to hold a hearing in the matter on June 28.