Florida Gov. Ron DeSantis signed a bill that was supposed to help combat online censorship, only to draw the ire of tech companies and legal experts. In early spring, DeSantis announced plans for a Florida bill that would allow the state to penalize social media companies for censoring politicians. The bill, S.B. 7072, was presented as a tool for combating “cancel culture” and Big Tech’s supposed monopoly on communication.
According to the law, Florida residents can now sue any tech company for up to $250,000 a day for removing a statewide political candidate from their platform for more than two weeks. The fine will decrease to $25,000 if the candidate runs for other positions, such as county sheriff. For an individual to get covered by this policy, they must register at the Florida Division of Elections or the website of an election supervisor. The bill also added provisions that would allow users to bring lawsuits against tech companies if they think the company is inconsistent about content decisions. That restricted social media platforms from changing content moderation policy more than every 30 days.
The law passed in both the Florida House and Senate, followed by DeSantis signing the bill into law on May 24. “Many in our state have experienced censorship and other tyrannical behavior firsthand in Cuba and Venezuela,” the governor said in a press release announcing the bill becoming law. “If Big Tech censors enforce rules inconsistently, to discriminate in favor of the dominant Silicon Valley ideology, they will now be held accountable.”
When the bill passed, it received immediate criticism from tech companies. Tech trade groups NetChoice and the Computer and Communications Industry Association immediately filed a lawsuit against Florida Attorney General Ashley Moody, arguing that the bill is a breach of the First Amendment. “Florida’s lawmakers [are pushing] unconstitutional bills into law that bring us closer to state-run media and a state-run internet,” Carl Szabo, vice president and general counsel of NetChoice, said. “By weakening the First Amendment rights of some, Florida weakens the First Amendment rights of all.” Other smaller tech companies seem more supportive of the gesture. “If this type of policy scales nationally, companies will think twice before they censor their users,” argued Colin Pape, founder of decentralized search engine Presearch. Pape told the Washington Examiner that he sees the bill as a “stick that users can poke Big Tech companies with.”
But the most pertinent question that has arisen in the wake is the bill’s constitutionality. “At the end of the day, every piece of DeSantis’s bill is unconstitutional,” Cory Barthold, internet policy counsel at TechFreedom, said. “Some of the pieces I would describe as flagrant and unconstitutional, while other parts take a serious parsing out to understand.” Barthold argued that the most visible part of the bill, the ban on censorship of Florida candidates, is “performative politics and very unlikely to stand the test of the court.” Barthold argued that the bill would unintentionally force a fairly broad policy practice in which companies are required to continue hosting any form of “lawful but awful speech.” These include spam messages, harassment, and doxxing.
Barthold noted that some of the other provisions, such as the 30-day policy change ban, would also be considered breaches of the First Amendment, although they require further elaboration.
While DeSantis’s bill will become law on July 1, it is anticipated that district courts will force the state to suspend enforcement while higher courts litigate the law’s constitutionality. The results of said litigation could affect whether other states attempt to pass similar legislation. Several states have shown interest in regulating social media activity within their state only to fail on the House floor or elsewhere.
