The New Social Media Act in Florida will be laughed out of court

The new Florida social media legislation is a double point of reference: It is the first law of the state that regulates the moderation of online content, and will almost certainly become the first law of its kind to be overturned in court.

On Monday, Gov. Ron DeSantis enacted the Stop Social Media Censorship Act, which severely limits the ability of large social media platforms to moderate or limit user content. U invoice is a legislative distillation of Republican anger over recent episodes of alleged anti-conservative prejudice, such as Twitter and Facebook closing Donald Trump’s account and suppressing the spread of the infamous New York Post History of Hunter Biden. Above all, it imposes heavy fines – up to $ 250,000 a day – on any platform that deactivates a candidate’s political office account, and prohibits platforms from acting against “journalistic companies”.

It is very difficult to imagine that one of these provisions would ever be applied.

“It’s so obviously unconstitutional, you don’t even put it to an exam,” said A. Michael Froomkin, a law professor at the University of Miami. By virtue of a well-established Supreme Court precedent, the First Amendment prohibits private entities from being forced to publish or transmit the speech of another. The ban on “deplatforming” political candidates would probably be interpreted as an unconstitutional provision to be carried out. “This law seems like a political gift,” Froomkin said. “You can pander, and nothing bad happens, because there’s no chance you’ll survive in court.” (The governor’s office did not respond to a request for comment.)

The Constitution is not the only issue for the new law. It also conflicts with Section 230 of the Decent Communications Act, a federal law that generally holds online platforms immune from liability for their content moderation decisions. Section 230 has become one object of resentment from both sides of the political landscape, but for different reasons. Liberals tend to think that the law lets online platforms get away with leaving too much harmful material. Conservative critics, however, argue that it lets them escape taking on too much stuff – and, worse, that it allows them to censor conservatives under the guise of content moderation.

Regardless of the merits of these criticisms, the fact is that Section 230 remains in force, and, like many federal statutes, explicitly prevents any State law from being in conflict with it. It is likely that any attempt to enforce the Stop Social Media Censorship Act will be a costly waste of time. Suppose a candidate for office in Florida repeatedly publishes statements that violate Facebook’s policies against vaccine misinformation, or racism, and Facebook bans its account. (Like, say, Laura Loomer, a self-described “Proud Islamophobe” that candidate for Congress last year in Florida after it was banned by Facebook and several other platforms.) If it asks for a break under the new law, it will seek to hold Facebook accountable for a decision to remove user content. But in Section 230 he says that the platforms are free “to limit access or availability of material” provided that they do so in good faith. (Facebook and Twitter declined to comment on whether they plan to abide by Florida law or fight in court. YouTube did not respond to a request for comment.)

Section 230 is likely to extend other aspects of Florida law that are less politically controversial than the prohibition of maladaptive policies. For example, the Florida Statute requires platforms to establish elaborate rights to the procedure for users, including giving detailed information on why a certain piece of content has been removed, and to let users opt for a strictly chronological newsfeed. without algorithmic curation. Both of these ideas have a common-sense appeal among technology reformers across the political spectrum, and versions of them are included in proposed federal legislation. But the application of those provisions as part of a state law in court would probably escape Section 230, because it boils down to holding a platform responsible for hosting, or not hosting, a piece of content generated by the law. user. The Florida legislature has no power to change that.

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