Florida’s New Social Media Law

There’s a lot of anxiety around, so let’s not add to it. Florida’s new social media law will have no effect on your professional website, your social media management, or your online presence, whether you live in Florida or not. 

But it might be a sign of changes to come. There are 100 bills of this kind under consideration. If you rely on social media for marketing, client engagement, or patient education, you may need be aware of this trend.

The Stop Social Media Censorship Act

Florida’s Governor Ron DeSantis signed into law the Stop Social Media Censorship Act, which forbids social media platforms to close down the account of any Floridian political candidate for office for longer than two weeks. It also allows individuals to sue social media platforms if they think the platform has either deleted their content or used an algorithm to show it less frequently.

“Deplatforming” a candidate for office in Florida can be punished, under the new law, buy fines of up to $250,000 a day for candidates for statewide office and $25,000 for other offices. 

As for the malicious use of algorithms, the law has an interesting twist. People can sue for “shadow banning,” which is a matter of prioritizing someone else’s content over that of the person being shadow banned, and the stuff you can sue for “includes acts of shadow banning by a social media platform which are not readily apparent to a user.” I take this to mean that a Floridian could sue on the basis of a feeling that he or she is being shadow banned, without any evidence of any kind, or at least of any kind that is actually apparent to a user.

There are some other requirements:

• “A social media platform must publish the standards, including detailed definitions, it uses or has used for determining how to censor, deplatform, and shadow ban.”
• They can’t change rules more than once a month.
• They have to allow users to opt out of the use of algorithms, and give them instead plain chronological order of posts — presumably all the posts of all their friends and every group they belong to and every company they have Liked or followed. 
• They have to send out announcements every year of the algorithms they’re using for shadow banning and remind people that they can opt out.

Oh, and companies that own theme parks are exempt from the law. 

What are they thinking?

DeSantis made his views clear in a tweet: “Today, Floridians are being guaranteed protection against the Silicon Valley power grab on speech, thought, and content. We the people are standing up to tech totalitarianism with the signing of Florida’s Big Tech Bill.”

Can the state of Florida actually prevent Facebook from changing its policies more than once a month? Can they require Twitter to make its algorithms public? Could they force WordPress to show all the blogs you’re following in strict chronological order?

Can Florida really do any of this?

There are two things that make it unlikely that this law or other laws like it can actually be enforced. 

One is Section 230 of the Communications Decency Act, which says that websites cannot be sued for removing content they consider “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable” as long as the companies are acting in “good faith.”

A bill was introduced into the U.S. Congress last year which would have replaced that list of adjectives with the single word “unlawful.” That bill died, so social media platforms can legally refuse to publish content that is objectionable to them. 

The other obstacle is the First Amendment to the Constitution, which guarantees freedom of speech. Websites cannot be forced to publish something they don’t care to publish, any more than a publishing company can be forced to bring out a book they don’t like.

Free speech (as in the First Amendment) means that the government can’t keep you from expressing your views. It doesn’t mean that you get to say anything you want under any circumstances and nobody can stop you. Users don’t have a right to free speech on Twitter any more than a stranger can come into your living room and give a speech without your permission.

So the law is clearly unconstitutional, and cannot be expected to survive its first test in court.

Possible futures

All that being said, it is possible that current concerns about privacy and censorship on social media platforms could have consequences in the future. Social media has become one of themes important sources of news and information, not to mention human contact during the pandemic. 

With so few players (and the new Florida law echoes antitrust concerns about Big Tech, too), it is reasonable to wonder whether a few giant corporations should have as much power over social media as they do. The Supreme Court likened social media to a public square in 2017.

If an unpopular individual gets asked to leave a public square, they can head over to the next public square. If there are only a few public squares, though, they will soon run out of places to hang out. 

Social media might feel like a public square, but market forces mean that Facebook, Twitter, and a few other private companies own the public squares. Therefore, they’re private rather than public. They have a whole different set of rules. 

As with many current issues, there is a lunatic fringe right at the front of this controversy. But if we look past that, we can see that there might need to be some changes. The Florida law isn’t one of them.