Debate over social media ‘censorship’ of conservatives is coming to a head in FL Legislature

By: - April 28, 2021 5:06 pm

A mob breaks into the U.S. Capitol on Jan. 6, 2021. Credit: Win McNamee/Getty Images

Legislation imposing substantial financial penalties against social media platforms that “censor” political candidates and private citizens is nearing a final vote in the Florida Legislature and likely will soon be on its way to Gov. Ron DeSantis for his signature.

How will this affect private citizens?

They’d be able to sue Twitter, Facebook, and other sites in state courts and collect as much as $25,000 for every day that a site kicked them off, deleted a post, or used its algorithms to limit exposure to their posts.

The measure’s teeth for doing the same to political candidates would be even sharper: Penalties of up to $250,000 if they’re seeking statewide office and $25,000 for other office seekers, per day. The state’s attorney general could seek those amounts through lawsuits filed under Florida’s Unfair Trade Practices Act.

Moreover, the bill would allow social media users to opt out of a platform’s algorithms in determining what appears highest on their feed. Instead, they could demand the platforms feed them posts in order of the time they were written.

Florida State Rep. Blaise Ingoglia. Credit: Florida House of Representatives

The House passed the measure (SB 7072) on a vote of 78-41. A companion bill (SB 7074) shielding personal information about users uncovered during state investigations of the companies, initially failed to secure the necessary two-thirds majority for a public records exemption but passed, 78-40, on a revote.

Procedurally, the bill now goes back to the Senate, which approved a different version of the legislation on Monday, so will have to decide whether to accept the House language. Republicans control both chambers and only one party member, Sen. Jeff Brandes of Pinellas County, has bucked the party on the matter.

During debate Wednesday on the House floor, bill sponsor Blaise Ingoglia from Hernando County, pitched the bill as a curb on overly powerful technology companies that use their market power to quash both competition and free speech.

“Big Tech is not a free market. Not even close. They have become so large and so powerful that just the mere fact that we are on the floor of the House of Representatives debating whether or not they are encroaching on our First Amendment rights tells you that something is wrong,” Ingoglia said.

But Gov. DeSantis and House and Senate leaders made clear in demanding the legislation in early February — weeks after Twitter, Facebook, and other tech companies kicked former President Donald Trump off their platforms for lying about who won the election and inciting violence — that there’s also a partisan political component involving the (debunked) accusation on the right that the platforms have censored conservatives.

At the time, DeSantis rejected the notion that Trump was deplatformed — meaning, kicked off the platforms — because he’d fanned conspiracies alleging election fraud and instigated the violent Jan. 6 invasion of the U.S. Capitol intended to prevent certification of Democrat Joe Biden’s election.

Common carriers

Much of the debate involved contesting claims about what the First Amendment demands.

The bill’s language notes that “Floridians increasingly rely on social media platforms to express their opinions” and that “social media platforms have transformed into the new public town square.”

In that context, the bill says, “Social media platforms that unfairly censor, shadow ban, deplatform, or apply post-prioritization algorithms to Florida candidates, Florida users, or Florida residents are not acting in good faith.”

(Post prioritization refers to the way social media platforms decide the order by which posts filter into users’ feeds, often using algorithms; shadow banning is a way “to limit or eliminate the exposure of a user or content or material posted by a user to other users a disfavored post,” the bill specifies.)

The measure would treat social media companies like common carriers — that is, like the phone companies or public utilities, which must serve all customers without favoring some over others.

The bill doesn’t explicitly ban platforms from censoring content, but says they must explain the rules and apply them equally; notify users in advance of any terms-of-service changes, which are only allowed once every 30 days; and must notify users of specific acts of censorship of their posts.

Democrats agree the platforms deserve scrutiny on antitrust ground. Florida is among the states now pursuing litigation against Facebook and Google for alleged antitrust violations, including their acquisition of start-up companies they see as potential business threats in the future.

But they argued the bill would unconstitutionally compel platforms to host information that violates their standards against spreading dangerous disinformation. Also, that it amounts to payback to social media companies that kicked Trump out.

“Really what this bill is, is retaliation for the former administration being banned from social media sites by spreading what many have deemed is false information which led to the incitement of riots, sedition, and, yes, riots,” said Democrat Anna Eskamani of Orange County.

FL Rep. Dan Daley, D-Broward. FL House of Representatives.

Broward Democrat Dan Daley noted that Trump’s many tweets sharing falsehoods had “shattered” political norms.

“If you declare, members, a free and fair election stolen, I’m sorry — you should be deplatformed. If you talk about gross voter fraud — which, by the way, there’s no record of — you should be deplatformed,” Daley said.

He also alluded to YouTube’s decision to dump a video posted by DeSantis and featuring doctors with no background in epidemiology who recommended that children not wear face masks and contending that lockdowns did no good against COVID’s spread.

The GOP case

A number of Republican members said that they, themselves, had been deplatformed or shadowbanned from social media and never got any explanation. So did Democrat Anika Omphroy of Broward County, who voted for the bill.

“They shadowed me. I couldn’t make a post. It wasn’t until I made my way to the Florida House and actually had a contact at Facebook that I got it to so that I could [resume] posting,” Omphroy said. “What happens to the people who don’t have special contacts?”

“What this bill is about is sending a loud message to Silicon Valley that they are not the absolute arbiters of truth,” said Republican John Snyder, who represents parts of Martin and Palm Beach counties. “I am not required, nor will I ever, bend or bow or form myself into a box of wokeness, political correctness, or other forms that Silicon Valley tried to dictate on us.”

“The five Big Tech companies in this country are an existential threat to our republican form of government. They played an unprecedented level of interference in our last election and will continue to do so going forward,” said Republican Anthony Sabatini of Lake County.

He cited decisions by Facebook and Twitter last October to bury a New York Post story alleging then-candidate Joe Biden had been linked to his son Hunter’s business dealings in China. However, a raft of former senior intelligence officials issued a statement declaring the matter looked like a Russian disinformation campaign, as reported by Politico.

Ingoglia raised a report released Tuesday by the conservative Judicial Watch alleging that California state officials pressured social media sites to censor content in advance of the election.

“Just because the federal government refuses to act on this issue doesn’t mean that this Legislature shouldn’t,” Ingoglia said.

Section 230

Federal law — Section 230 of the 1996 Communications Decency Act — protects websites from being sued over “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”

Ingoglia conceded that. But the sites are abusing the phrase “otherwise objectionable,” he argued, and in removing posts and users are acting more like publishers making editorial decisions and less like neutral platforms.

During initial floor debate on Tuesday, Ingolgia declared that deplatforming breaks the deal between social media company and user — that the former will allow the latter free access to its site in exchange for access to user data they can deploy in targeted advertising.

“You have given them all of your information but now you no longer have the use and enjoyment of the platform. So, in my view and in the view others, they are actually breaking that contractual obligation,” he said.

He cited Justice Clarence Thomas’ concurring opinion in an April 5 U.S. Supreme Court ruling preventing Trump, while still on office, from blocking critics from following his Twitter account on First Amendment grounds because Twitter is a “public forum.”

“But it seems rather odd to say that something is a government forum when a private company has unrestricted authority to do away with it,” Thomas wrote. The opinion doesn’t carry the force of law but signals where the court’s conservative majority may be headed.

Additionally, Ingoglia said, Section 230 allows states to regulate internet companies so long as they don’t contradict the national law. “We have a right to make a law to protect Floridians inside our own borders.”

Meanwhile, Congress has been under pressure, as reported by CBS and other news organizations, for some time to revisit Section 230’s protections, which are credited with allowing the nascent internet to thrive, to better align with the tech industry’s political and economic clout today.

What the tech companies say

NetChoice, a lobby with members including Amazon, Aol, Google, Facebook, and an array of online retailers, compares the legislation to the old Fairness Doctrine, which used to require broadcasters to air opposing opinions.

First Amendment of the US Constitution text. Getty Images

“This bill abandons conservative values, violates the First Amendment, and would force websites to host antisemitic, racist, and hateful content. Content moderation is crucial to an internet that is safe and valuable for families and Floridian small businesses, but this bill would undermine this important ecosystem,” Carl Szabo, the organization’s general counsel, said in a written statement.

“SB 7072 is unconstitutional as it compels private businesses to host speech in a blatant violation of the First Amendment. Creating a new Fairness Doctrine for the internet will only make it harder for conservatives to share their news and views online.”

Facebook described its approach to misinformation in a post published on March 22, describing a team of 80 fact checkers around the world.

“When they rate something as false, we reduce its distribution so fewer people see it and add a warning label with more information for anyone who sees it. We know that when a warning screen is placed on a post, 95 percent of the time people don’t click to view it,” Vice President for Integrity Guy Rosen wrote.

“We also notify the person who posted it and we reduce the distribution of Pages, Groups, and domains who repeatedly share misinformation. For the most serious kinds of misinformation, such as false claims about COVID-19 and vaccines and content that is intended to suppress voting, we will remove the content.”

Twitter CEO Jack Dorsey defended his company’s decision to ban Trump in a thread posted on Jan. 13.

“After a clear warning we’d take this action, we made a decision with the best information we had based on threats to physical safety both on and off Twitter,” Dorsey wrote.

“I believe this was the right decision for Twitter. We faced an extraordinary and untenable circumstance, forcing us to focus all of our actions on public safety. Offline harm as a result of online speech is demonstrably real, and what drives our policy and enforcement above all.”

Precedent

There’s precedent for allowing states to protect the free-speech rights of their citizens even contrary to federal law, UCLA School of Law professor Eugene Volokh has written on his “The Volokh Conspiracy” blog. He cited a ruling preventing a shopping center from banning petition gatherers from its property.

But can a state government compel a private company to carry malignant mis- and disinformation?

“I think this is a genuinely unresolved issue,” Volokh told the liberatarian Reason magazine.

“This might be a sort of thing where there might be a consensus in Congress: ‘You don’t want these quasimonopolisitic corporations influencing elections that sharply, not just through their speech, but through the blocking of speech.’ I could see Democratic and Republican lawmakers saying, ‘That’s something we don’t want under this private control.'”

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal. He began his career covering the Florida Capitol for United Press International. More recently, he wrote for Florida Politics.

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