• by Wendy Davis  @wendyndavis, November 15, 2021

Florida's new social media law “poses a direct threat to healthy and safe online communities” by hindering web companies' ability to control material on their platforms, a coalition of groups is telling a federal appellate court.

“The Act will affirmatively harm Floridians by exposing them to a range of dangerous and objectionable content that today is screened out by provider content moderation efforts,” the industry-funded group Chamber of Progress and nine other organizations write in a friend-of-the-court brief filed Monday with the 11th Circuit Court of Appeals.

“If enforced, the Act will cause consumers to lose the benefits of healthy, inclusive, and widely accessible online communities and services,” the groups add.

Organizations signing on to the brief include the Information Technology & Innovation Foundation, LGBT Tech Institute, National Black Justice Coalition and the Progressive Policy Institute.

The groups are backing NetChoice and the Computer & Communications Industry Association, which sued to block enforcement of the new law.

The measure (SB 7072), which was slated to take effect July 1, 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.)

The social media law also prohibits social media companies from “censoring,” “deplatforming” or “shadow banning” journalistic enterprises, based on content.

Other provisions require social media companies to disclose their standards for suppressing material, and to notify all users (including non-politicians and groups other than journalistic organizations) if their material has been “censored” or “shadow banned.”

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 law after Republican Governor Ron DeSantis called for a crackdown on supposed “censorship” of conservatives by tech companies -- despite an absence of proof that Silicon Valley companies disproportionately suppress right-wing views.

Earlier this year, U.S. District Court Judge Robert Hinkle in Tallahassee blocked the bulk of the law, ruling it probably violated the 1st Amendment.

Florida recently urged the 11th Circuit to lift that block. Among other arguments, the state contends that the law merely extends the same “common carrier” rules that have long applied to telephone companies to social media companies.

NetChoice and the Computer & Communications Industry Association recently countered that social media companies don't meet the traditional definition of "common carriers," noting that social platforms have never claimed to offer “indiscriminate” access to their platforms.

The Chamber of Progress and other organizations argue separately that the law's prohibitions on “deplatforming” political candidates and journalistic enterprises will give account holders who fall into those categories “a virtual free pass to do as they like” on social media platforms.

“A user claiming to be a candidate will likely be given a wide berth because of fear of triggering penalties of up to $250,000 per day,” the groups write. They add that provisions in the law requiring companies to disclose their reasons for suppressing posts could result in harm to consumers.

“If a post is tagged as spam because it is directed at 50 users, the spammer will know to only send it to 49 users next time,” the groups write.

The dispute over Florida's law has drawn widespread interest from outside observers.

The libertarian organization TechFreedom called the law “a First Amendment train wreck,” in a separate friend-of-the-court brief filed Monday. “Slapping the label 'common carrier' on something doesn’t make it so,” TechFreedom writes.

The group adds that even if social media companies were to be considered “common carriers,” they would still have “much broader discretion to refuse service” than the Florida law allows.

“Common carriers have always been entitled to refuse service, or bar entry, to anyone who misbehaves, disrupts the service, harasses other patrons, and so on,” the group writes. “Because SB 7072 tries to force websites to serve even such people, it is not itself a proper common carriage regulation. Florida’s attempt to treat social media websites like common carriers is a dead end.”

Other organizations expected to weigh in with separate friend-of-the-court briefs against Florida's bill include the Center for Democracy & Technology and the Knight First Amendment Institute at Columbia University.

Attorneys general from Texas and nine other states are siding with Florida in the dispute.

In September, those states filed a friend-of-the-court brief urging the appellate court to uphold the law.

Texas recently passed a social media bill that prohibits web companies from suppressing speech based on viewpoint. That measure is facing a separate court challenge.