Florida’s New Social Media Law Violates the First Amendment | #socialmedia


Florida’s new law punishing social media platforms that ban politicians for violating their terms of service is obviously unconstitutional, violating the companies’ free speech and free association rights. But the law is a good opportunity to think about how the First Amendment applies to for-profit corporations, and suggests reasons to think more deeply about the infamous 2010 Supreme Court decision, Citizens United v. FEC.

The key provision of the Florida law states that “a social media platform may not willfully deplatform a candidate for office” — and imposes a $250,000 per day fine for violations. It’s obviously aimed at the deplatforming of former president Donald Trump by Twitter, Facebook and others. (Disclosure: I advise Facebook on free expression issues and helped design the oversight board that recently upheld the Trump deplatforming; the opinions expressed in this column are, as always, altogether mine and not at all Facebook’s.)

The law almost certainly violates Section 230 of the Communications Decency Act, which gives platforms a safe harbor against lawsuits for their content moderation decisions. For that reason, a federal court might invalidate the law on statutory grounds without ever ruling on its First Amendment problems.

Yet those First Amendment problems are the heart of the matter. Under current constitutional law, social media platforms — like all companies — enjoy the same protections of free speech and association that belong to individuals.

In essence, Florida is telling the platforms that they cannot choose what speech to allow on their platforms, nor choose the users with whom they wish to associate. That’s a double no-no, in First Amendment terms. It amounts to compelled speech and compelled association, both of which clearly violate the Constitution.

Social media platforms have terms of service (often called “community guidelines”) that restrict speech substantially more than a government would be allowed to do. They routinely use these guidelines to remove racist, sexist, homophobic and transphobic speech. That speech would be protected by the First Amendment if it were the government trying to sanction it. Unlike private companies, the government has an obligation under First Amendment doctrine to make sure its regulation of expression is viewpoint neutral. That means the government can’t ordinarily prohibit speech that’s offensive to traditionally marginalized or vulnerable groups — because doing so would disfavor the viewpoint of the racists and haters.

But social media companies are not the government. And they themselves have First Amendment rights. That is, the platforms have the constitutional right to allow and disallow whatever speech they want on their platforms; and the corresponding right to dissociate themselves from speakers who break their terms of service, like Trump.

Conservatives who don’t like this state of affairs favor legislation, like the Florida law, that would impose more permissive standards of content moderation on the platforms. Their concern is that the platforms’ content moderation standards aren’t neutral.



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