Florida Republicans' battle with 'Big Tech' will likely face big legal challenges

“Businesses are afforded some of the same First Amendment rights as individuals,” the staff analysis said.

click to enlarge Florida Republicans' battle with 'Big Tech' will likely face big legal challenges
Photo via DeSantis/Twitter

After Twitter permanently removed former President Donald Trump from its site and social-media platforms began slapping warnings on posts by other politicians, Republican state leaders are punching back.

But a proposed crackdown on big tech is drawing questions, even from the GOP-controlled Legislature’s own analysts.

A House committee Tuesday gave initial approval to legislation aimed at punishing social-media companies that block users or censor content. The vote came hours after Gov. Ron DeSantis hit on the issue during a State of the State speech that helped launch the 2021 legislative session.

“Florida has always been a state that strongly supports free speech, and we cannot allow the contours of acceptable speech to be adjudicated by the whims of oligarchs in Silicon Valley,” DeSantis told lawmakers gathered in the House chamber. “Nor we can allow Floridians to be ‘de-platformed’ or silenced with no means of recourse, and this is especially true of those who rely on these technology platforms for their livelihoods.”

Condemnation of tech behemoths such as Twitter, Facebook, Amazon, Apple and Google has become a litmus test for Republicans heading into the 2022 elections, when DeSantis will be running for a second term as governor of the nation’s third-largest state. Senate President Wilton Simpson, R-Trilby, and House Speaker Chris Sprowls, R-Palm Harbor, have said they support the effort to punish the technology giants.

Florida “cannot allow Big Tech to interfere in our elections by putting a thumb on the scale for political candidates favored by Silicon Valley,” DeSantis said Tuesday, after sketching out legislation on the issue last month.

The proposal approved Tuesday by the House Commerce Committee would, among other things, bar social-media companies from blocking political candidates from their platforms. It would give the Florida Elections Commission the power to fine the platforms $100,000 a day for blocking statewide candidates and $10,000 a day for other candidates.

Committee Chairman Blaise Ingoglia, a former chairman of the Republican Party of Florida, said social-media users believe “big tech makes up the rules as they go.”

The measure is designed to “enforce some common sense standards on big tech monopolies,” Ingoglia, R-Spring Hill, said before the panel’s 16-8 vote in favor of the bill (PCB COM 21-01). Just one Democrat --- Rep. Anika Omphroy of Lauderdale Lakes --- sided with Republicans in approving the proposal. 

Ingoglia said the committee bill would require social-media platforms to publish standards “and then hold every side accountable to those published standards.”

But Rep. Joe Geller, D-Aventura, argued that tech companies “have a right to have their platform be free of hate.”

“There are a lot of kinds of free speech that are permitted even though odious. And interfering with core, political, free speech, even odious speech, is something that we don’t allow the government to do but we do allow a broad range of expression on the part of individuals and companies,” Geller, a lawyer, said.

The measure would set other requirements for social-media companies, including clearing the way for lawsuits.

But a House staff analysis raised questions about whether the bill would be subject to legal challenges under the U.S. Constitution’s First Amendment and Supremacy Clause, which largely gives precedence to federal laws over state laws.

“Businesses are afforded some of the same First Amendment rights as individuals,” the staff analysis said. “Generally, businesses cannot be compelled to host speech with which it disagrees absent a mandate that has been narrowly tailored to serve a compelling state interest. Some of the provisions of the bill may implicate First Amendment protections regarding speech by a business.”

Federal law “does not offer much recourse” for users who wish to challenge social-media providers’ decisions about whether to allow certain content, according to a 2019 Congressional Research Service report.

“Lawsuits predicated on these sites’ decisions to host or remove content have been largely unsuccessful, facing at least two significant barriers under existing federal law,” the congressional report said.

The barriers, according to the report, include the First Amendment and what is known as “Section 230” of the federal Communications Decency Act. 

Courts have held that the First Amendment provides “protection against state action,” but would not necessarily apply to the private companies being targeted by Florida Republicans.

The federal communications act provides immunity to providers of interactive computer services, “both for certain decisions to host content created by others and for actions taken ‘voluntarily’ and ‘in good faith’ to restrict access to ‘objectionable’ material,” the 2019 report said. 

The House proposal is targeted at large platforms, as it would apply to social-media companies that have at least $100 million in annual gross revenues or at least 100 million monthly “individual platform participants” globally.

Ingoglia said lawmakers have received calls from constituents who are “very, very concerned” after being removed from social-media sites.

“You have grandparents, great-grandparents, have all this stuff uploaded onto a social media site. They’re being deplatformed for something they said, not even knowing what they said, can’t get any information, then all of a sudden all these pictures of them with their grandkids are gone,” he said.

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