• by Wendy Davis  @wendyndavis, June 22, 2021

Florida officials are urging a federal judge to allow the state to enforce its new social media law, which prohibits large platforms from banning politicians.

In papers filed late Monday, state officials argue to U.S. District Court Judge Robert Hinkle in Tallahassee that the law advances the goals of the First Amendment by attempting to prevent the biggest tech companies from suppressing speech.

“The social media behemoths’ power to silence both on their platforms and throughout society has given rise to a troubling trend where a handful of corporations control a critical chokepoint for the expression of ideas,” the state argues. “The Act seeks to rein in abuse of this power and ensure the widespread dissemination of information from a multiplicity of sources -- a governmental objective of the highest order that promotes values central to the First Amendment.”

The law (SB 7072), slated to take effect next month, prohibits social media companies from “deplatforming” some political candidates, and provides for fines of up to $250,000 per day for violations. (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 to block enforcement.

The groups say the law violates the First Amendment for numerous reasons, including that it interferes with private companies' editorial decisions.

“Rather than preventing what it calls 'censorship,' the Act does the exact opposite: it empowers government officials in Florida to police the protected editorial judgment of online businesses that the State disfavors and whose perceived political viewpoints it wishes to punish,” the organizations alleged in a complaint brought late last month.

The associations also argue that the exception for companies owning theme parks renders the law underinclusive.

Additionally, the groups say Section 230 of the Communications Decency Act -- which protects websites from liability for content moderation decisions -- overrides the state law.

Florida officials are asking Hinkle to reject all of those arguments.

Among other contentions, the state argues that the law merely applies “common carrier” standards to the largest platforms, essentially subjecting them to the same kinds of rules that apply to telephone carriers.

“The Florida Legislature permissibly determined that the 'old rules' applicable to common carriers should be applied to the 'new circumstances' of social media,” Florida officials argue. “The social media platforms covered by the Act have significant market power within their domains, and they hold themselves out to the public when trafficking in important public goods.”

The argument that large social platforms should be treated like common carriers has gained traction in some circles, with proponents noting that Supreme Court Justice Clarence Thomas recently suggested that approach in a concurring opinion he issued in April. Since then, Sen. Roger Wicker (R-Mississippi) floated the idea of legislation to subject large social media platforms to common carrier rules, and Ohio Attorney General Dave Yost sought a judicial declaration that Google is a common carrier under Ohio law.

Florida officials also urge Hinkle to rule that Section 230 doesn't always protect companies from lawsuits over content moderation.

The state also contends the exception in the law for owners of theme parks is constitutional, but suggests that if the exception is problematic, it could be removed.

“The narrow exception ... should be severed from the rest of the act if the court deems it unconstitutional,” the officials write.

The state's Republican governor, Ron 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 -- despite a lack of empirical evidence that tech companies disproportionately suppress conservative views.

DeSantis repeated his criticisms of tech companies when he signed the legislation.

“Silicon Valley is acting as a council of censors,” he said, adding that tech companies “use shadow banning and secret algorithms to shape debates and control the flow of information.”

“Every day they act as the proverbial Big Brother,” he added. “It's time to step in and ensure that we the people, especially our everyday Floridians, are guaranteed protection against the Silicon Valley power grab.”

Hinkle has scheduled a hearing in the matter for June 28.