A federal judge recently blocked a Florida law that would have penalized social media companies for removing, or refusing to publish, posts by politicians. Florida legislators approved the legislation after Facebook, Twitter and YouTube suspended then-President Donald Trump’s accounts for violating their policies in the aftermath of the January 6 attack on the U.S. Capitol. The law was set to take effect on July 1, but a U.S. District Judge in the Northern District of Florida issued a preliminary injunction preventing it from becoming operative. The court ruled that the plaintiffs were likely to prevail on their assertion that the law was unconstitutional because it violates the First Amendment.
The law purports to establish fines and other penalties for tech companies that suspend political candidates in the course of an election campaign. Florida Governor Ron DeSantis signed the legislation into law in May, lauding it as a necessary counter-measure to what he asserted was censorship by “Big Tech” of conservatives. De Santis announced that he would immediately appeal the judge’s decision to the U.S. Court of Appeals for the Eleventh Circuit.
Industry groups, prominent lawyers and law professors questioned the constitutionality of the Florida law almost immediately upon reports that it was being drafted in the state legislature. NetChoice and the Computer and Communications Industry Association (CCIA), which represent companies including Facebook, Google and Amazon, brought a lawsuit challenging it upon its enactment. In granting the plaintiffs’ petition for a preliminary injunction blocking the new law from taking effect, the judge held that it unlawfully “compels providers to host speech that violates their standards.” By doing so, he suggested, the law was an instance of government impermissibly mandating that private businesses publish a political figure’s statements and other content, regardless of the truth of the statements or any potential effects on public safety. The court also assailed the Florida law as “riddled with imprecision and ambiguity,” and said it “does not survive strict scrutiny.”
Curiously, the Florida law, which would mandate that tech/social media companies publish political candidates’ postings, came into being at the same time that many of its advocates and supporters in the government are asserting that Section 230 of the federal Communications Decency Act, which largely insulates such companies from liability for hosting or “re-publishing” users’ postings, should be modified or repealed. The effect of pairing laws like Florida’s currently-enjoined legislation with repeal or modification of that federal legislation would be to simultaneously compel private companies to publish whatever a politician wished them to publish during an election campaign, and expose them to civil liability for doing so.