Florida lawmakers advance bill to penalize social media companies

The bill would require social media companies to publish the standards it uses for censoring, de-platforming or blocking a user or their content, and give users 30 days before removing them from the platform.
The Facebook app is shown on a smart phone, Friday, April 23, 2021, in Surfside.
The Facebook app is shown on a smart phone, Friday, April 23, 2021, in Surfside. [ WILFREDO LEE | AP ]
Published April 27, 2021|Updated April 27, 2021

TALLAHASSEE — Outraged over a perception that social media companies are biased against conservatives, Florida legislators are close to finalizing a bill that makes it more difficult for platforms like Twitter, Facebook, Amazon and others to punish users for violating their terms of service agreements.

The House on Tuesday adopted the provisions of SB 7072 on a mostly party-line voice vote, after the Senate passed it Monday. It is expected to receive final approval in both the House and Senate before it is sent to the governor by the close of session on Friday.

The bill would require social media companies to publish the standards it uses for censoring, de-platforming or blocking a user or their content, and give users 30 days before removing them from the platform, regardless of how dangerous or violence the content is.

“Big tech must be held accountable. Big tech cannot be left unchecked,’' said Rep. Blaise Ingoglia, a Spring Hill Republican who sponsored the House version of the bill. “Social media companies and how big they are getting are indeed becoming a problem, and it’s becoming a First Amendment issue in the United States to the point where people from both political parties are starting to recognize just how powerful they are becoming.”

The biggest criticism to the bill is that while there is bipartisan consensus that platforms have gotten too powerful, until they are officially deemed regulated monopolies by the federal government, they are private companies protect by the First Amendment, and Florida alone can’t change that.

A bipartisan group of opponents considers the bill unconstitutional and warns that by compelling companies to allow speech that violates their use-of-service agreements, at could suppress their attempts to moderate dangerous content, which will lead to more calls for restraints on free speech.

“This bill abandons conservative values, violates the First Amendment, and would force websites to host antisemitic, racist and hateful content,” said Carl Szabo, vice president and general counsel at NetChoice, a technology advocacy organization. “SB 7072 is unconstitutional as it compels private businesses to host speech in a blatant violation of the First Amendment. Creating a new Fairness Doctrine for the Internet will only make it harder for conservatives to share their news and views online.”

DeSantis made it a priority

The bill must get final approval of Gov. Ron DeSantis because he has deemed it a top priority. The governor proposed the idea in January with House Speaker Chris Sprowls and Senate President Wilton Simpson at his side. Former President Donald Trump had just been banned by Facebook and Twitter for violating their terms of service when he used his accounts to incite violence and disseminate conspiracy theories about the election and the Jan. 6 insurrection.

DeSantis criticized “the big tech oligarchy” for being “more of a clear and present danger to the rights of free speech than the government itself.”

But Democrats warn that the bill is being driven by national party politics more than principle. Sen. Jason Pizzo, a Miami Democrat, alluded to the fact that DeSantis is considering running for the Republican nomination for president in 2024 if he gets reelected governor in Florida.

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“I’m just like writing notes down of a speech that’s going to be given an Iowa in a couple of years, not in your district,’' Pizzo said before the Senate voted out the bill on Monday. “This is not for your constituents.”

Called the “Transparency and Technology Act,” the measure would limit the extent to which social media companies can change their terms of service or moderate their content. It would force platforms to allow users to opt-out of algorithms and make it easier for Florida’s attorney general and individuals to sue “big tech..”

Any user who has been de-platformed would be allowed access to retrieve all of their information and content. And any platform that removes someone without giving them 30 days warning may be fined up to $250,000 per day.

“This bill does something very simple. It requires social media platforms to define the behavior that will lead to a censor. That’s it,’' said Sen. Ray Rodrigues, an Estero Republican before the Senate vote on Monday.

Rep. Anna Eskamani, D-Orlando, asked Ingoglia for examples of people who have been removed from social media platforms and what they said that provoked the removal. He responded that he has had “numerous constituents” come to him saying they were taken off a platform for violating their terms of service but not given a specific reason.

Ingoglia said he was motivated to pursue the bill after the New York Post story on Hunter Biden. Twitter blocked users from posting links to the Post story due to questions about “the origins of the materials,” which was supposedly illegally obtained from a computer that had been left by Biden at a Delaware computer repair shop in April 2019. Facebook placed restrictions on linking to the article, saying there were questions about its validity.

A questioning Republican voice

Republican Sen. Jeff Brandes of St. Petersburg vigorously questioned the intent of the legislation. At the last committee stop for the Senate bill, Brandes read an example of a post provided to him by Amazon, which removed the Parler platform from its server after it violated its terms of service by allowing posts promoting violence and conspiracies.

“On Jan. 20, we need to start systematically assassinating liberal leaders, their activists...and members of NBA, NFL, MLB, anchors and correspondents and Antifa,’' the post read. “I already have a newsworthy event planned.”

Brandes asked Rodrigues why the state wanted to prevent platforms from “taking that kind of content down?’'

Rodrigues responded that under the bill the user would have 30 days to continue using the platform before getting kicked off.

“We can’t have 50 different states with 50 different laws on what you could post. It isn’t gonna work. It isn’t gonna work in Florida,’' Brandes said Monday.

He pointed to three pages of the Senate staff analysis where the staff essentially confirms that the bill is unconstitutional, adding that social media companies remove content because “they have a liability for the content that’s posted on their site.”

“The reason Parler got taken off of Amazon Web Services was they got overwhelmed, they couldn’t keep up,’' Brandes said. “There were too many posts coming in, and they couldn’t they couldn’t clear them all.”

Pizzo said Republicans were following a double standard.

“We don’t fault or question Facebook or other social media platforms if they take down nudity and pornography,’' he said. “We don’t question their good discretion on taking down things that are violent and insightful.”

Among the constitutional arguments against it: By forcing platforms to treat “both sides” of a debate equally, the bill coerces platforms into promoting speech in possible violation of the First Amendment; state law that violates federal law also violates the Supremacy Clause of the U.S. Constitution, and the restrictions placed on user agreements of social media platforms may also violate the Contracts Clause of both the state and federal constitutions.

DeSantis’ accusations

DeSantis, a loyal supporter of Trump, has been undeterred by the arguments. In January, he accused Facebook, Twitter, Google and Amazon of “viewpoint discrimination,” alleging that their algorithms unfairly limit conservative speech. He specifically noted that the platforms didn’t ban from their accounts the supporters of the Black Lives Matter movement and Iranian leader Ayatollah Ali Khamenei, both of whom DeSantis said used their accounts to incite violence.

“They have so much garbage and filth on that platform, all the time,’' he said in January. “They did not censor people when they were using those platforms for the rioting that occurred over the summer, so their excuse doesn’t hold water.”

However, according to a study released by New York University, Trump dominated social media among all U.S. politicians and there is no evidence his views were silenced (except when he used the platform to incite violence, in violation of the terms of service). His Facebook interactions alone were 654 million, compared to the next highest for Bernie Sanders, at 33 million.

The bill is supported by the Heartland Institute, a conservative think tank that said, “we are entering into a potentially dangerous time for political free speech.” It is opposed by Facebook, Apple, Amazon, NetChoice and the Internet Association.

The Senate approved the bill 22-17 with Brandes joining Democrats to oppose it.

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