On May 24, 2021, Florida’s governor signed into law legislation prohibiting social media companies from blocking political candidates seeking to use those companies’ websites to communicate with the sites’ users. Almost immediately, legal experts predicted that the new law, hailed by its proponents as a necessary means of reining in the power wielded by “Big Tech,” would be beset with court challenges. Three days later, the first such challenge appeared. With the law scheduled to go into effect on July 1, 2021, two online industry groups filed suit, seeking a preliminary injunction in federal court in Tallahassee.
The two groups, NetChoice and the Computer & Communications Industry Association, argue that the law is “a frontal assault on the First Amendment,” violating the right of free speech (among other rights) by effectively compelling private companies to give voice to politicians, both those already holding government offices and those who seek them. The groups’ motion for a preliminary injunction also asserts that the law would substantially harm social media companies’ attempts to moderate the content posted on their sites.
The lawsuit contends that the new Florida law violates the U.S. Constitution’s Commerce Clause, as well as free speech, due process, and equal-protection rights. The plaintiffs also argue that this legislation plainly violates Section 230 of the federal Communications Decency Act, which generally shields companies from being penalized for content posted by users on platforms the companies host, and likewise protects the companies from being regulated for removing content.
Florida’s social media legislation seeks to prevent companies such as Twitter and Facebook from removing political candidates from the companies‘ platforms. Violations could result in fines of $250,000 a day for statewide candidates and $25,000 a day for other candidates. Another key facet of the law is a requirement that social media companies publish their standards for blocking users, and that they consistently follow those published standards. The law permits customers to file lawsuits in an effort to redress alleged violations by a company. All of these features will be the subject of judicial scrutiny in light of the pending lawsuit in Tallahassee and other potential challenges.
