Floridian state and local governments worked at cross purposes in early May when, while Miami Mayor Francis Suarez wooed Silicon Valley at Tech Week, the Florida legislature sent a punitive social media bill to Governor DeSantis’ desk. Florida Senate Bill 7072 is intended to prevent supposedly biased content moderation and punish monopolistic firms, but it is unworkable and unconstitutional. If Gov. DeSantis signs SB 7072, it will invite costly legal challenges and kneecap Miami’s overtures to the tech industry.
The bill is comprised of two main sections. The first section establishes a state “antitrust violator vendor list” of disfavored firms. The second enumerates a host of new prohibitions and mandates planned to produce fairness in content moderation. Many are fairly technical; platforms must offer accurate view count tools, “provide a user with the number of other individual platform participants who were provided or shown content or posts,” give written explanations of all content moderation decisions, and store all data from banned accounts for free for 60 days. Platforms are prohibited from moderating journalists’ speech. These requirements may be enforced via private suit or administrative action under the Florida Deceptive and Unfair Trade Practices Act. Private suits utilizing the new causes of action are likely precluded by Section 230 of the Communications Decency Act, which give platform broad leeway to moderate, and stipulates that;
“No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”
While Section 230 wouldn’t prevent administrative enforcement of the new requirements, the First Amendment would. The bill makes a “deceptive act or practice” of platform operators’ exercise of their basic First Amendment rights to speak or refrain from speaking. As Berin Szoka and Corbin Barthold explain, courts have repeatedly held that onerous regulation, even regulation intended to promote speech, raises First Amendment concerns if it makes carrying speech more costly or difficult.
The bill’s “antitrust violator vendor list” provision is likely legal but foolish. Persons added to the list would be denied government contracts and certain state financial incentives. Criteria for inclusion or exclusion from the list is convoluted in the extreme. The list would initially include anyone convicted of an antitrust offense federally, or by other states, effectively outsourcing Florida’s judgement. However, another layer of review would have administrative judges conduct balancing tests between various public interests in order to add or remove names from the list. Bidders not selected for state contracts would have a new mechanism for contesting and dragging out the process. Competing states would be granted a potent tool for dissuading firms from moving to Florida. Introducing a source of continuing uncertainty into Florida’s state vendor selection process is unlikely to be good for Floridians.
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