Legislation purporting to crack down on social media censorship narrowly cleared the Senate Governmental Oversight and Accountability Committee today by a three to two vote. Senate Proposed Bill 7072, which opponents say will restrict the the constitutional rights of certain companies, was submitted as a Committee Bill and reported favorably.
In part, the bill aims to prohibit social media platforms from de-platforming candidates for political office and enables the Florida Elections Commission to fine a social media platform $100,000 per day for de-platforming statewide candidates and $10,000 per day for de-platforming all other candidates. But opponents say the definition of who qualifies as a candidate for public office will likely result in individuals that have no intent to campaign exploiting the loophole by claiming to be considering a run for office while seeking attention through the posting of offensive or even vulgar content that normally would constitute a violation of a social media company’s terms of use. If the law passes, social media companies would be forced to tolerate the content if the person claimed to be considering a run for public office.
Republicans, particularly Governor Ron DeSantis and the Florida Legislative leadership, believe conservatives are being unfairly targeted by big tech censorship, but Democrats argue the GOP-sponsored legislation is a response to former President Donald Trump’s de-platforming from Twitter and Facebook.
As the bill progresses, many conservatives are starting to sound alarm bells about the constitutional ramifications.
In comments before the committee, Carl Szabo, vice president and general counsel for NetChoice, an association of eCommerce businesses and an adjunct professor of Internet law at George Mason’s Antonin Scalia Law School, said, “Look, as a conservative I’m frustrated, too. I get upset when I see acts of bias against conservatives. But I fundamentally believe in a private entity’s right to decide what’s best for its users and its advertisers. If we want, as conservatives, to support decisions like Masterpiece Cakes, Hobby Lobby and Citizens United, we have to recognize the First Amendment rights of a private entity to decide what is best for its users and its customers.”
Senator Ray Rodrigues (R-Lee County) brought the bill forward today. He recognized that social media companies are private and said that made it “tricky.”
“However, they have become so dominant through their monopolies that they are actually controlling the dissemination of information on electronic means,” he said.
He explained U.S. Congress passed legislation in 1996 that treated social media differently than traditional media because social media claimed to just be a platform, a conduit of information. He said social media is no longer just a conduit when they are fact-checking and censoring content.
“What I would say is the world that we have today is very different than the world in 1996 when Congress passed that legislation. Google didn’t exist. Facebook didn’t exist. Twitter didn’t exist. None of these monopolies who have come to dominate the world of technology existed at that time.
“It may be time for the court to take a look at this on whether we are governing these entities correctly. I think what is happening now is an evolving process and I think Florida can help lead the evolution with this bill,” Rodrigues said.
Szabo said the monopoly argument isn’t valid, because there’s a “panoply of choice out there,” ie. Facebook, Twitter, YouTube, Parler, Snapchat, etc.
He said, “When you join social media platforms you enter into written contracts called ‘terms of service.’ We have to ask ourselves … do we believe in overriding private contracts with private businesses? The answer is no.
“This is ultimately about the First Amendment,” he said.
He told the committee he was certain the legislation would face constitutional challenge and not survive it. He explained that recently a group Prager U sued YouTube and a judge decided that “despite YouTube’s ubiquity as its role as a public facing forum, it remains a private forum not a public forum subject to judicial scrutiny under the First Amendment.”
Senator Linda Stewart (D-Orange County) told the committee that the bill had both good and bad parts.
“The reason I’m not going to be able to support it today is I don’t want there to be a strong arm of government coming down on the social media and those that want to voluntarily get involved with that,” she said
Senator Victor Torres (D- Osceola and Orange County) said, “There’s a lot of overreach on this bill. You know what you sign up for in the social media. I just feel that this bill goes a little bit too far.”
Brian Burgess contributed to this story.