Florida Social Media Censorship Law Touted by Gov. DeSantis Is a ‘Frontal Assault on the First Amendment’: Lawsuit

A pair of online trade associations implored a federal judge to block a controversial Florida law that would penalize social media companies for “censoring” political candidates, calling the measure “patently unconstitutional” and a “frontal assault on the First Amendment.”

The complaint, filed Thursday in the U.S. District Court for the Northern District of Florida, asserts that S.B. 7072 infringes on the rights to freedom of speech, equal protection, and due process by compelling speech from a select group of private companies for their perceived political affiliations. Plaintiff tech trade groups, NetChoice LLC and the Computer & Communications Industry Association (CCIA), further claims that the law is preempted by Section 230 of the Communications Decency Act.

Republican Gov. Ron DeSantis began championing the bill as a way to hold “the Silicon Valley elites” accountable for “censorship and other tyrannical behavior” after Twitter and Facebook banned former President Donald Trump from their platforms for his role in inciting the Jan. 6 siege on the U.S. Capitol.

But according to the lawsuit, and the vast majority of legal experts, the measure would impose financial penalties on companies for engaging in constitutionally protected conduct, such as moderating their online platforms and enforcing their companies’ terms of service.

“The Act discriminates against and infringes the First Amendment rights of these targeted companies, which include Plaintiffs’ members, by compelling them to host—and punishing them for taking virtually any action to remove or make less prominent—even highly objectionable or illegal content, no matter how much that content may conflict with their terms or policies,” the suit stated.

The complaint notes that, under the law, the platforms would be compelled to carry a “variety of harmful, offensive, or unlawful material” such as terrorist incitement, foreign propaganda, calls for genocide, and conspiracies concerning Holocaust denial, effectively robbing companies of “core editorial functions” protected by the Constitution.

“Rather than preventing what it calls ‘censorship,’ the Act does the exact opposite: it empowers government officials in Florida to police the protected editorial judgment of online businesses that the State disfavors and whose perceived political viewpoints it wishes to punish,” the complaint stated. “Although the Act uses scare terms such as ‘censoring,’ ‘shadow banning,’ and ‘deplatforming’ to describe the content choices of the targeted companies, it is in fact the Act that censors and infringes on the companies’ rights to free speech and expression; the Act that compels them to host speech and speakers they disagree with; and the Act that engages in unconstitutional speaker-based, content-based, and viewpoint-based preferences.”

As further evidence that Florida Republicans were motivated by political animus, the complaint highlighted that the law creates specific exceptions for online services owned by The Walt Disney Company and Universal Studios—which is owned by Comcast—“simply because they own well-attended ‘theme parks’ in Florida.”

“This undisguised singling out of disfavored companies reflects the Act’s true purpose, which its sponsors freely admitted: to target and punish popular online services for their perceived views and for certain content-moderation decisions that state officials opposed—in other words, to retaliate against these companies for exercising their First Amendment rights of ‘editorial discretion over speech and speakers on their property.’

Barring a court order halting enforcement, the law is set to take effect July 1.

Read the full lawsuit below.

[image via Joe Raedle/Getty Images]

The post Florida Social Media Censorship Law Touted by Gov. DeSantis Is a ‘Frontal Assault on the First Amendment’: Lawsuit first appeared on Law & Crime.

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May 27, 2021 at 05:47PM

Gov. DeSantis’s Proposed Law Penalizing Social Media Companies for De-Platforming Politicians Is ‘Hilariously Unconstitutional’

Despite his degree from Harvard Law School, Florida’s Republican Gov. Ron DeSantis’s latest fusillade against Silicon Valley has left legal observers wondering whether he has read the First Amendment of the U.S. Constitution. The pro-Trump Republican zealously advocated for a series of self-styled anti-censorship laws that three legal experts contacted by Law&Crime noted amount to unconstitutional compulsory speech for private companies—in direct contravention of U.S. Supreme Court precedent.

And DeSantis could have learned as much by reading a famous high court case involving his hometown paper.

In a last-minute press conference largely focused on denouncing “Big Tech” and “cancel culture,” DeSantis unveiled a proposal to penalize social media companies that suspend or block candidates for political office with hefty fines.

“We’ve seen the power of their censorship over individuals and organizations, including what I believe is clear viewpoint discrimination,’’ DeSantis said. “Under our proposal, if a technology company de-platforms a candidate for elected office in Florida during the election, a company will face a daily fine of $100,000 until the candidate’s access to the platform is restored again.”

DeSantis made his announcement on the same day that attorneys for Donald Trump formally argued that the former president’s false claims of election fraud and the role his words played in inciting his supporters to storm the U.S. Capitol were protected by the First Amendment.

The governor even specifically cited Twitter’s decision to permanently suspend Trump from its platform as a reason why his proposal was vital to upholding vital free speech principles.

But legal experts were quick to point out that DeSantis’s proposal was itself an unequivocal attack on constitutionally protected free speech.

“Governor DeSantis’ proposal is neither novel nor constitutional. It raises the same issue as a previous Florida law which required newspapers that criticized a political candidate to publish that candidate’s response,” First Amendment attorney Ari Cohn said in an email to Law&Crime.

That 1974 case, Miami Herald v. Tornillo, was cited by all three experts Law&Crime contacted.

“The Supreme Court struck down the law, ruling that it violated the newspapers’ First Amendment right to choose which content to run or not run,” Cohn said. “In invalidating that law, the Court expressly rejected the very same argument people make for regulating content moderation today: that concentration of ownership and ‘monopoly of the means of communication’ justifies forcing private parties to carry certain speech. But the Court found it unconstitutional then, and it remains unconstitutional now.”

Professor Daxton “Chip” Stewart, a media law expert who referred to the proposal as “hilariously unconstitutional,” said that DeSantis exhibited a fundamental misunderstanding of corporations’ rights.

“Basically, DeSantis seems to forget that private companies like Facebook and Twitter have First Amendment rights, too,” Stewart noted. “The government can’t force them to host speech they don’t want to, or threaten punishment like these absurd fines for refusing to give platforms to people they find intolerable. Just as a platform can remove accounts of terrorists or the KKK or a cabal that conspires to violently overthrow the government, they can remove accounts of any other individual.”

Stewart also noted that the Tornillo decision provided astute guidance on the matter.

“The [Tornillo] logic carries over to this kind of situation – platforms, as private companies, are allowed to make editorial decisions. The state of Florida could no more fine Facebook for refusing to host a racist or fascist politician than it could force a newspaper to publish an op-ed by that politician,” he wrote. “Sure, they may be shielded from liability for making those decisions under Section 230 of the Communications Decency Act, but that’s a different law for a different situation. It doesn’t alter the First Amendment at all. It seems that a lot of the time that these politicians complain about Section 230, what they really don’t like is that platforms have free speech protections just like regular citizens do. And you can’t undo that by repealing or changing Section 230.”

First Amendment attorney Marc J. Randazza lauded DeSantis’s overall objective, but said the proposed measure was not a viable means of achieving those ends.

“I respect what DeSantis is trying to do, but unconstitutional acts engaged in for a good reason do not transform them into constitutional acts,” he wrote, adding that the governor should start by “re-reading Miami Herald v. Tornillo.”

DeSantis did not immediately respond to an email requesting comment.

[image via Joe Raedle/Getty Images]

The post Gov. DeSantis’s Proposed Law Penalizing Social Media Companies for De-Platforming Politicians Is ‘Hilariously Unconstitutional’ first appeared on Law & Crime.

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February 3, 2021 at 01:54PM

Florida Activists Call Anti-Protest Laws Biased

After months of public outrage and accusations of discrimination over disparate penalties against Black Lives Matter (BLM) activists who clashed with Proud Boys and counterprotesters during a demonstration in New Port Richey, Fl., last summer,  local  police dropped the citations against seven BLM demonstrators. But the incident has raised concerns about a push by Gov. Ron DeSantis and other Florida GOP lawmakers for a sweeping state bill to crack down on disruptive protests, creating new classes of crimes that include up to 15-years in jail if police declare that nine or more people have participated in a riot, reports the Washington Post. Dozens of Floridians showed up at the state capitol in Tallahassee Wednesday to testify against the governor’s protest bill in front of a House committee, arguing that the measure would cripple free speech and make it easier for law enforcement agencies to discriminate against people of color

DeSantis initially proposed the legislation amid nationwide Black Lives Matter protests, singling out tactics associated with racial justice protests: damaging memorials and blocking roadways, while providing protection from lawsuits for drivers who push through such protests. At least 28 states considered similar bills that created new or harsher penalties for protesters last year,  In addition to creating new crimes and penalties for damaging memorials, the bill increases penalties for battery of a law enforcement officer and outlaws “mob intimidation,” defined as two or more people attempting to compel another “to assume or abandon a particular viewpoint.”

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February 3, 2021 at 11:06AM