Florida state officials are fighting to lift a block on a new law that requires social media companies to host speech by political candidates.
In papers filed this week with the 11th Circuit Court of Appeals, state officials argue that the law merely extends the same “common carrier” rules that have long applied to telephone companies to social media platforms.
“The Florida Legislature permissibly determined that the 'old rules' applicable to common carriers should be applied to the 'new circumstances' of social media,” state officials argue.
“The Act’s deplatforming and shadow banning limitations for candidates during the pendency of their campaigns embodies a long tradition of ensuring common carriers afford those aspiring to elective office 'an opportunity to persuade others of the merits of their views,'” the state adds.
Florida's law (SB 7072), which was slated to take effect July 1, would have fined social media companies $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 of the law would have prohibited 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).
Florida lawmakers passed the measure after Republican Governor Ron DeSantis called for a crackdown on supposed “censorship” of conservatives by tech companies -- despite a lack of empirical evidence that tech companies disproportionately suppress right-wing views.
Earlier this year, U.S. District Court Judge Robert Hinkle in Tallahassee blocked large portions of the law, ruling that the measure likely violated the First Amendment.
“The legislation now at issue was an effort to rein in social-media providers deemed too large and too liberal,” he wrote in a 31-page order, issued in a lawsuit brought by the tech industry groups NetChoice and Computer & Communications Industry Association. “Balancing the exchange of ideas among private speakers is not a legitimate governmental interest.”
State officials are now asking the 11th Circuit to lift the bulk of that injunction. Among other arguments, the state contends that requiring social media platforms to carry politicians' speech doesn't violate the First Amendment because people won't attribute the politicians' views to the social media company.
“The act’s hosting regulations prevent the platforms from silencing others,” the state writes. “They leave platforms free to speak for themselves, create no risk that a user’s speech will be mistakenly attributed to the platforms, and intrude on no unified speech product of any platform. These requirements are little different from traditional regulation of common carriers that has long been thought consistent with the First Amendment.”
A broad array of outside organizations -- including the civil rights groups Electronic Frontier Foundation, the Internet Association (which represents many of the largest tech companies) and the industry-backed Chamber of Progress -- have argued that the law is unconstitutional.
The Chamber of Progress specifically said in court papers that the requirement to host speech by candidates for office “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.”