Content moderation policies have come under fire from Democrats and Republicans and Congressional hearings and legislation focused on this issue have become commonplace. However, a bill in the Sunshine State is one signature away from radically changing how social media companies are operating. Despite the comments submitted to legislators from NTU Foundation warning of the repercussions of this proposal, Florida’s legislature has passed a controversial bill aimed at taking on so-called “Big Tech.” The Transparency in Technology Act (S.B. 7072) is billed as a pro-free speech bill, but it is riddled with critical flaws. Carve-outs for special interest groups, limiting private businesses' ability to act independently of the government, and looming legal challenges if this were to pass all jeopardize the effectiveness of this legislation. Luckily, there is still time for Governor Ron DeSantis (R-FL) to make the correct decision for his constituents and refuse to sign this misguided bill.
While proponents of these big government regulations claim it takes on the “oligarchs in Silicon Valley,” it conveniently leaves a carve-out for “a company that owns and operates a theme park or entertainment complex.” Clearly “Big Tech” was not the only group concerned about the bill. As a top employer in Florida, Disney leveraged its position to exclude themselves from the ramifications of this bill. Not limited to theme parks, Disney has expanded into online streaming and even owns a majority share of ESPN. Of course, it wasn’t long ago that some conservatives were outraged at Disney’s decision to fire Gina Carano, an actress from The Mandalorian, over her tweets and who later appeared on conservative commentator Ben Shapiro’s news site The Daily Wire, and even agreed to partner with Shapiro’s production company for an upcoming film. There’s no plausible reason to create an exception like this if the goal is truly to stop “censorship” and protect free speech. This egregious exception for theme park operators is a huge red flag, demonstrating this bill has morphed into something that won’t accomplish the original goal. If Florida lawmakers want to encourage the creation of new theme parks in the state, this could be a step in that direction. However, it is extremely difficult to see this as a serious free speech protection bill.
As you get further into the details, the legislation does not improve. While high-profile moderation decisions made by social media companies have galvanized some on the right, these decisions can also be used to protect vulnerable groups like children from harmful content. Without content moderation, social media sites could quickly become cesspools of sexually explicit or abusive content. For the few content moderation decisions that provoke outrage, there are millions more that help to ensure that the platform is usable. Sites that are unable to adequately keep scams, terrorist propaganda, or other harmful content from being shared are unlikely to retain advertisers or consumers. Most adult Americans do not want to see this unsavory user-generated content, and certainly would not want to subject children to a hostile online environment. However, the Florida bill would limit social media platforms’ ability to change their terms of service and remove content.
With President Trump’s ban from most major social media networks in mind, this Florida bill would prohibit a private social media company from deplatforming, shadow banning, or applying post-prioritization algorithms to Florida candidates. Simply put, social media platforms would be handcuffed from restricting the reach of content or taking action to limit access to an account run by a candidate for office in Florida, and the consequences for violations would be a massive fine ($250,000/day if the candidate is running for statewide office and $25,000/day for other offices). This would provide blank check immunity for these individuals to engage in any harmful actions online. An individual who pays a filing fee or gathers the required signatures could act with impunity, and unfortunately bad people do run for office. In 2016, David Duke, former leader of the Ku Klux Klan, announced he was running for Senate in Louisiana to “stop the ethnic cleansing” of people who founded this country. If this bill was to be signed into law, a person with these bigoted views would gain an online megaphone to spread racist or harmful content without social media companies able to step in.
There are also legal challenges to this mandate to carry speech. In The Miami Herald Publishing Co. vs Tornillo, the Miami Herald criticized a Florida House candidate but refused to carry the candidate’s reply. The Supreme Court unanimously found the “right to reply” law violated the First Amendment, and as Berin Szóka, President of TechFreedom, notes, these websites have these same rights. The government cannot compel a private company to carry speech, and, in the past, conservatives have fought back against attempts to limit private enterprise’s ability to make independent decisions. In 2017, conservative lawmakers rallied around a Colorado baker who refused to make a cake for a same-sex wedding because it violated his religious beliefs, protected by the First Amendment, and the same principle applies here. If the Transparency in Technology Act were to be signed into law, lawsuits would likely surface quickly, leaving Florida taxpayers on the hook for defending this misguided attempt at promoting speech.
With the flourishing of online platforms hosting millions of users, policy problems are bound to surface. Lawmakers should attempt to address these novel issues in a light-touch and even-handed manner to ensure onerous regulations do not crush this growing sector of the economy. As Americans leave high tax states and others transition to remote work, Florida has become an increasingly popular destination for growing businesses — especially in the technology sector. However, excessive regulations could threaten this positive trajectory. The Transparency in Technology Act would not serve the intended purpose, and it is more likely that this would saddle taxpayers with the bill for costly legal fights rather than promoting free speech. Governor DeSantis should not sign this misguided and possibly unconstitutional bill.