In Florida, unconstitutional social media regulation as performance art

Florida law now says it is illegal to throw a politician off a social network. This violates the First Amendment.

First the facts. From Wired:

On Monday, Governor Ron DeSantis signed into law the Stop Social Media Censorship Act, which greatly limits large social media platforms’ ability to moderate or restrict user content. The bill is a legislative distillation of Republican anger over recent episodes of supposed anti-conservative bias, like Twitter and Facebook shutting down Donald Trump’s account and suppressing the spread of the infamous New York Post Hunter Biden story. Most notably, it imposes heavy fines—up to $250,000 per day—on any platform that deactivates the account of a candidate for political office, and it prohibits platforms from taking action against “journalistic enterprises.”

In case you are wondering if that is an accurate description, here is the actual text of the bill:

A social media platform may not willfully deplatform a candidate for office who is known by the social media platform to be a candidate, beginning on the date of qualification and ending on the date of the election or the date the candidate ceases to be a candidate. A social media platform must provide each user a method by which the user may be identified as a qualified candidate and which provides sufficient information to allow the social media platform to confirm the user’s qualification by reviewing the website of the Division of Elections or the website of the local supervisor of elections.

Upon a finding of a violation of subsection (2) [above] by the Florida Elections Commission, in addition to the remedies provided in ss. 106.265 and 106.27, the social media platform may be fined $250,000 per day for a candidate for statewide office and $25,000 per day for a candidate for other offices. . . .

This section may only be enforced to the extent not inconsistent with federal law and 47 U.S.C. s. 230(e)(3), and notwithstanding any other provision of state law.

This is the most obvious violation of the First Amendment imaginable

You might think this is a good idea. But the question is, is it a good law? It is not. On its face, it violates the First Amendment in the Bill of Rights. Since the First Amendment is part of the Constitution, it overrides any federal or state law.

The First Amendment states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press . . .

This is a law abridging freedom of speech — specifically the freedom of speech of the social networks. The First Amendment guarantees that social networks (and anyone else) can make any rules they want about which speech they allow and which they prohibit.

Just as there is no rule that the Miami Herald must publish anything Florida Governor Ron DeSantis wants, there is no rule that Twitter must host his comments (or anyone else’s).

What about Section 230 and social media regulation?

Section 230 of the Communications Decency Act regulates social networks. It basically says, they need to obey certain rules in order to enjoy a liability shield against prosecution for hosting comments by their users. Section 230 is not an abridgment of freedom of speech — it makes no prohibitions of any kind of speech. Any social network can post or block anything it wants according to any rules it wants. However, if the social network wants the liability protection in Section 230, it must obey certain rules, such as regulating and moderating speech in good faith.

As a federal law, the Communications Decency Act (including Section 230) prevails over Florida state law. So again, the Florida law would be impossible to enforce.

Section 230 and the CDA are badly in need of reform. I’ve written about a potential reform modeled on the Fairness Doctrine. Notably, my suggestion would not prohibit any speech on those social networks, but would instead require them present a more diverse set of viewpoints to any individual users — in exchange for Section 230 protection.

If, like me, you think social network rules need reforming, the path to do that is to change federal law, or its enforcement according to the rules of the Federal Communications Commission.

Making different rules for Facebook and Twitter in Florida is not the way to do this. That’s just now how communications law works.

Why did Florida do this?

This law will be struck down in about 15 seconds. There’s no doubt about its being unconstitutional.

Who is defending it?

DeSantis said this as he signed the law:

Some of these massive, massive companies in Silicon Valley are exerting a power over our population that really has no precedent in American history . . . One of their major missions seems to be suppressing ideas. . . . When you de-platform the president of the United States but you let Ayatollah Khamenei talk about killing Jews, that is wrong.

That’s just posturing. I can make a law that says “Bad people should be put in jail.” It might be fun, people might cheer it. But it’s not a good law; it’s unenforceable. So is Florida’s social media law.

Looking for people defending the law, I searched Fox News. But today’s news on Fox is all about the dreadful spread of “Wokeism.” Despite the fact that the Florida law was passed yesterday, the most recent article about it on Fox News is from a month ago. It includes a comment from a Republican legislator that “This bill is not about President Trump.” Good to know. (Do you think the bill is about Donald Trump?)

Since the bill is going nowhere but into the trash, it’s just performance art. It’s red meat for the Republican base, intended to generate heat, not to withstand scrutiny.

Is this what we want our lawmakers to be doing?

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