Gov. DeSantis’ anti-Big Tech law gets him dragged into federal court; industry calls law unconstitutional

By: - May 27, 2021 4:42 pm

The U.S. District Court for the Northern District of Florida courthouse in Tallahassee.

Three days after Gov. Ron DeSantis signed his new law punishing social media platforms for alleged censorship of conservatives, the measure has drawn a lawsuit in federal court alleging it would require the platforms to publish disinformation, propaganda, conspiracy theories and more.

The 70-page complaint, filed in the U.S. District Court for the Northern District of Florida, which includes Tallahassee, asserts violations of the First and Fourteenth amendments and Section 230 of the Communications Decency Act, designed to shield online companies from lawsuits over hosted content.

The plaintiffs are NetChoice and the Computer & Communications Industry Association, both lobbying organizations for the tech sector. Named defendants include DeSantis and Attorney General Ashley Moody.

The lawsuit argues the new law would punish companies for declining to host or deny prominence to “even highly objectionable or illegal content, no matter how much that content may conflict with their terms or policies.”

It continues: “These unprecedented restrictions are a blatant attack on a wide range of content-moderation choices that these private companies have to make on a daily basis to protect their services, users, advertisers, and the public at large from a variety of harmful, offensive, or unlawful material.”

The complaint cites “pornography, terrorist incitement, false propaganda created and spread by hostile foreign governments, calls for genocide or race-based violence, disinformation regarding Covid-19 vaccines, fraudulent schemes, egregious violations of personal privacy, counterfeit goods and other violations of intellectual property rights, bullying and harassment, conspiracy theories denying the Holocaust or 9/11, and dangerous computer viruses.”

It notes that, in passing the law, the Florida Legislature carved out an exemption expressly designed to cover The Walt Disney Co.

“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.”

DeSantis signed the law in Miami on Monday, comparing social media sites and other tech companies that punished former President Donald Trump and other conservatives for spreading the “Big Lie” that Trump was cheated out of reelection and similar misinformation and disinformation.

DeSantis, a Trump protégé planning campaigns for reelection and governor and possibly the presidency, compared the sites to a new public square in which everyone deserves access.

“Maybe this isn’t as much the bearded tyrant in the military fatigues — you know, maybe the person is in pajamas on their laptop drinking a soy latte in Silicon Valley,” DeSantis said. “You know what, when they have the power to silence you, you take it seriously,” he said.

The measure (SB 7072) requires social media platforms to be transparent about their rules of conduct and provide notice to users when they change. Users could sue in state courts and collect as much as $100,000 for every day that a site kicked them off, deleted a post, or used its algorithms to limit exposure to their posts. The law contains added protections for political candidates.

Additionally, tech companies that participate in antitrust activity would be barred from state contracts.

“The legislative record leaves no doubt that the state of Florida lacks any legitimate interest — much less a compelling one — in its profound infringement of the targeted companies’ fundamental constitutional rights,” the complaint reads.

“To the contrary, the act was animated by a patently unconstitutional and political motive to target and retaliate against certain companies based on the state’s disapproval of how the companies decide what content to display and make available through their services,” it says.

“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 asserts.

“This is evident from Gov. Ron DeSantis’ own press release that touts the act as a means to ‘tak[e] back the virtual public square’ from ‘the leftist media and big corporations,’ who supposedly “discriminate in favor of the dominant Silicon Valley ideology,” it says.

“We are bringing this suit to safeguard the industry’s free speech right to deliver on their commitments to users to mitigate harmful content online,” CCIA President Matt Schruers said in a written statement.

“By constraining digital services’ ability to fight bad actors online, this law threatens to make the Internet a safe space for criminals, miscreants, and foreign agents, putting Floridians at risk. Gov. DeSantis is correct that this is a free speech issue: a digital service that declines to host harmful content is exercising its own First Amendment rights,” he said.

“U.S. free speech principles protect the public from government penalties for speech; they do not protect elected officials from the speech choices of the public. Forcing a company to publish government officials’ speech is more characteristic of last-century dictatorships than 21st-century democracies,” Schruers said.

“Americans everywhere should oppose Florida’s attempt to run roughshod over the First Amendment rights of private online businesses,” said Carl Szabo, NetChoice’s vice president and general counsel.

“We cannot stand idly by as Florida’s lawmakers push unconstitutional bills into law that bring us closer to state-run media and a state-run internet,” he said. “The First Amendment protects social media platforms’ right to host and moderate content as they see fit for their business models and users.”

Julio Fuentes, president, of the Florida Hispanic Chamber of Commerce, issued his own written statement supporting the lawsuit. “Under the guise of holding social media companies accountable and preventing them from de-platforming candidates for office, SB 7072 is a dangerous step towards a state-run internet,” he said.

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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.