Today, Florida Governor Ron DeSantis signed into law a social-media speech regulation that is doomed to fail in court. The new law requires large platforms (among other things) to moderate content “in a consistent manner”; to “publish the standards, including detailed definitions,” it uses to moderate content; to “categorize algorithms used for post-prioritization”; and never to “willfully deplatform a [political] candidate.” What DeSantis has signed amounts to a social-media speech code.

“The law is a First Amendment train wreck,” said Corbin K. Barthold, Internet Policy Counsel at TechFreedom. “When it comes to free speech, a website is no different from a newspaper or a parade: it has a fundamental right to decide what speech it will allow, and what speech it won’t, on its platform. Florida is trying to force a few large platforms to host speech they otherwise wouldn’t. This kind of blatant content- and speaker-based discrimination is unconstitutional. And as if that weren’t enough, the law contains a carveout for Disney!”

“In defending this law in court, expect Florida to throw everything at the wall, hoping something sticks,” Barthold continued. “The State will likely make arguments about ‘common carriage,’ ‘public accommodations,’ and ‘consumer protection.’ But simply slapping a ‘common carriage’ label on something doesn’t make it so. The attempt to use ‘public accommodations’ law, as though the platforms were equivalent to segregated restaurants in the Old South, is not only wrong but, frankly, insulting. And as a matter of ‘consumer protection,’ one no more has a right to speak on a website than to have an op-ed published in a paper.”

“Ultimately, the defects in this law show why no social-media speech regulation can pass constitutional muster,” Barthold concluded. “Florida is far from the only state considering this sort of online speech code (though other states, so far, have had the good sense not to follow through). Although it’s certainly possible that discrete elements of these laws survive court challenges, the provisions that survive will not be the ones that grab headlines. By and large, these pushes to ‘crack down on Big Tech’ are political performance.” 


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