The Florida Deplatforming Law is Unconstitutional. Always has Been.

Last week, the Florida Legislature passed a bill prohibiting social media platforms from “knowingly deplatforming” a candidate (the Transparency in Technology Act, SB 7072), on pain of a fine of up to $250k per day, unless, I kid you not, the platform owns a sufficiently large theme park. 

Governor DeSantis is expected to sign it into law, as he called for laws like this. He cited social media de-platforming Donald Trump as  examples of the political bias of what he called oligarchs in Silicon Valley.” The law is not just about candidates, it also bans “shadow-banning” and cancels cancel culture by prohibiting censoring “journalistic enterprises,” with “censorship” including things like posting “an addendum” to the content, i.e. fact checks.

This law, like similar previous efforts, is mostly performative, as it almost certainly will be found unconstitutional. Indeed, the parallels with a nearly 50 years old compelled speech precedent are uncanny. In 1974, in Miami Herald Publishing Co. v. Tornillo, the Supreme Court struck down another Florida statute that attempted to compel the publication of candidate speech. 

50 Years Ago, Florida’s Similar “Right of Reply” Law Was Found Unconstitutional

At the time, Florida had a dusty “right of reply” law on the books, which had not really been used, giving candidates the right to demand that any newspaper who criticized them print a reply to the newspaper’s charges, at no cost. The Miami Herald had criticized Florida House candidate Pat Tornillo, and refused to carry Tornillo’s reply. Tornillo sued.

Tornillo lost at the trial court, but found some solace on appeal to the Florida Supreme Court.  The Florida high court held that the law was constitutional, writing that the statute enhances rather than abridges freedom of speech and press protected by the First Amendment,” much like the proponents of today’s new law argue. 

So off the case went to the US Supreme Court. Proponents of the right of reply raised the same arguments used today—that government action was needed to ensure fairness and accuracy, because the ‘marketplace of ideas’ is today a monopoly controlled by the owners of the market.”  

Like today, the proponents argued new technology changed everything. As the Court acknowledged in 1974, “[i]n the past half century a communications revolution has seen the introduction of radio and television into our lives, the promise of a global community through the use of communications satellites, and the specter of a ‘wired’ nation by means of an expanding cable television network with two-way capabilities.”  Today, you might say that a wired nation with two-way communications had arrived in the global community, but you can’t say the Court didn’t consider this concern.

You might wonder why the Florida Legislature would pass a law doomed to failure. Politics, of course.

The Court also accepted that the consolidation of major media meant “the dominant features of a press that has become noncompetitive and enormously powerful and influential in its capacity to manipulate popular opinion and change the course of events,” and acknowledged the development of what the court called “advocacy journalism,” eerily similar to the arguments raised today. 

Paraphrasing the arguments made in favor of the law, the Court wrote “The abuses of bias and manipulative reportage are, likewise, said to be the result of the vast accumulations of unreviewable power in the modern media empires. In effect, it is claimed, the public has lost any ability to respond or to contribute in a meaningful way to the debate on issues,” just like today’s proponents of the Transparency in Technology Act.

The Court was not swayed, not because this was dismissed as an issue, but because government coercion could not be the answer. “However much validity may be found in these arguments, at each point the implementation of a remedy such as an enforceable right of access necessarily calls for some mechanism, either governmental or consensual. If it is governmental coercion, this at once brings about a confrontation with the express provisions of the First Amendment.” There is much to dislike about content moderation practices, but giving the government more control is not the answer.

Even if one should decry the lack of responsibility of the media, the Court recognized “press responsibility is not mandated by the Constitution and like many other virtues it cannot be legislated.”  Accordingly, Miami Herald v. Tornillo reversed the Florida Supreme Court, and held the Florida statute compelling publication of candidates’ replies unconstitutional.

Since Tornillo, courts have consistently applied it as binding precedent, including applying Tornillo to social media and internet search engines, the very targets of the Transparency in Technology Act (unless they own a theme park). Indeed, the compelled speech doctrine has even been used to strike down other attempts to counter perceived censorship of conservative speakers.[FN1]  

With the strong parallels with Tornillo, you might wonder why the Florida Legislature would pass a law doomed to failure, costing the state the time and expense of defending it in court. Politics, of course. The legislators who passed this bill probably knew it was unconstitutional, but may have seen political value in passing the base-pleasing statute, and blaming the courts when it gets struck down. 

Politics is also the reason for the much-ridiculed exception for theme park owners. It’s actually a problem for the law itself. As the Supreme Court explained in Florida Star v BJF, carve-outs like this make the bill even more susceptible to a First Amendment challenge as under-inclusive.  Theme parks are big business in Florida, and the law’s definition of social media platform would otherwise fit Comcast (which owns Universal Studios’ theme parks), Disney, and even Legoland.  Performative legislation is less politically useful if it attacks a key employer and economic driver of your state. The theme park exception has also raised all sorts of amusing possibilities for the big internet companies to address this law by simply purchasing a theme park, which could easily be less expensive than compliance, even with the minimum 25 acres and 1 million visitors/year. Much as Section 230 Land would be high on my own must-visit list, striking the law down is the better solution.

The Control that Large Internet Companies Have on our Public Conversations Is An Important Policy Issue

The law is bad, and the legislature should feel bad for passing it, but this does not mean that the control that the large internet companies have on our public conversations isn’t an important policy issue. As we have explained to courts considering the broader issue, if a candidate for office is suspended or banned from social media during an election, the public needs to know why, and and the candidate needs a process to appeal the decision. And this is not just for politicians – more often it is marginalized communities that bear the brunt of bad content moderation decisions. It is critical that the social platform companies provide transparency, accountability and meaningful due process to all impacted speakers, in the US and around the globe, and ensure that the enforcement of their content guidelines is fair, unbiased, proportional, and respectful of all users’ rights. 

This is why EFF and a wide range of non-profit organizations in the internet space worked together to develop the Santa Clara Principles, which call upon social media to (1) publish the numbers of posts removed and accounts permanently or temporarily suspended due to violations of their content guidelines; (2) provide notice to each user whose content is taken down or account is suspended about the reason for the removal or suspension; and (3) provide a meaningful opportunity for timely appeal of any content removal or account suspension. 

FN1: Provisions like Transparency in Technology Act’s ban on addendums to posts (such as fact checking or link to authoritative sources) are not covered by the compelled speech doctrine, but rather fail as prior restraints on speech. We need not spend much time on that, as the Supreme Court has roundly rejected prior restraint.

Source: The Florida Deplatforming Law is Unconstitutional. Always has Been.

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