Tech industry groups challenge social media law

By Jim Saunders
News Service of Florida

Describing the law as a “frontal assault on the First Amendment,” two online industry groups filed a federal lawsuit last Thursday seeking to block a measure pushed by Gov. Ron DeSantis to crack down on large social-media companies.

NetChoice and the Computer & Communications Industry Association want a judge to prevent the law from taking effect July 1, contending that it is a “smorgasbord of constitutional violations” that would prevent companies from properly moderating content on their platforms.

“The act discriminates against and infringes the First Amendment rights of these targeted companies, which include plaintiffs’ members, by compelling them to host — and punishing them for taking virtually any action to remove or make less prominent — even highly objectionable or illegal content, no matter how much that content may conflict with their terms or policies,” said the 70-page lawsuit, filed in federal court in Tallahassee.

The lawsuit contends that the measure, which was passed last month by the Republican-controlled Legislature, violates free-speech, due-process and equal-protection rights. Also, it argues that the law violates the Commerce Clause of the U.S. Constitution and flies in the face of a federal law that shields internet companies from such regulation.

“The act is so rife with fundamental infirmities that it appears to have been enacted without any regard for the Constitution,” the lawsuit said. “The act imposes a slew of hopelessly vague content-based, speaker-based and viewpoint-based restrictions on the editorial judgments and affirmative speech of the selected online businesses that it targets.”

The lawsuit was filed three days after DeSantis, flanked by Lt. Gov. Jeanette Nunez, lawmakers and other supporters, signed the measure (SB 7072) into law during an event in Miami. DeSantis described Florida as a “trailblazer” and said the measure would protect free speech.

“What we have seen in recent years is a shift away from internet platforms and social-media platforms from really being liberating forces to now being enforcers of orthodoxy,” DeSantis said. “So, their primary mission or one of their major missions seems to be suppressing ideas that are either inconvenient to the narrative or which they personally disagree with.”

Opponents of the measure have long warned that it would face a constitutional challenge. DeSantis made the issue a priority after his ally, former President Donald Trump, was blocked from Facebook and Twitter after Trump supporters stormed the U.S. Capitol on Jan. 6.

The law, in part, seeks to bar social-media companies from removing political candidates from the companies’ platforms. Companies that violate the prohibition could face fines of $250,000 a day for statewide candidates and $25,000 a day for other candidates.

Also, a key part of the law will require social-media companies to publish standards about issues such as blocking users and apply the standards consistently. In addition, customers could file lawsuits if social-media companies violate parts of the law.

As an indication of how the law targets large technology companies, it will apply to platforms that have annual gross revenues of more than $100 million or have at least 100 million monthly individual “participants” globally.

The lawsuit said the measure singles out certain companies and pointed to an eleventh-hour amendment that lawmakers added to shield theme-park operators from the restrictions. House sponsor Blaise Ingoglia, R-Spring Hill, said at the time that the exemption was added because of concerns that the Disney Plus streaming service could be affected by the bill.

“The legislative record leaves no doubt that the state of Florida lacks any legitimate interest — much less a compelling one — in its profound infringement of the targeted companies’ fundamental constitutional rights,” the lawsuit said. “To the contrary, the act was animated by a patently unconstitutional and political motive to target and retaliate against certain companies based on the state’s disapproval of how the companies decide what content to display and make available through their services.” 

But DeSantis and other supporters of the law said Monday they were trying to stop what the governor described as a “Silicon Valley power grab.”

“I, along with the legislators and this great governor, do not think that a handful of kids behind some desks in Silicon Valley get to be the arbiter of what free speech is,” Ingoglia said Monday.

But the lawsuit fired back at arguments by DeSantis and others that the law would protect speech on social-media platforms.

“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 lawsuit said.