Will Florida Social Media Bill Allow Trump back Online?

Question

Does the Florida Social Media Bill Allow Trump to Be Back on Twitter and Facebook? It prohibits internet companies from banning Politicians on social media. "SB 7072 also bars social media platforms from restricting “journalistic enterprises,” which the bill defines as entities that do business in Florida and have at least 100,000 monthly active users or 50,000 paid subscribers."

Florida set to fine social media firms up to $250,000 a day for knowingly deplatforming politicians

Florida bill would fine social media platforms for banning politicians

Answer 1

Trump is not a candidate

The law regulates certain activities by large social media platforms (defined) and declares certain activities to be an "unfair or deceptive act or practice", which is already illegal Fla. Stat. 501.204 and analogous laws exist throughout the US. The key provisions of this law are that standards for censorship (defined), deplatforming, and shadow banning must be described in detail and published, and must be applied uniformly to users. SE, take notice. The law also outlaws bans without notice or opportunity to retrieve certain information, and must "[i]nclude a thorough rationale explaining the reason that the social media platform censored the user". However, traditional bans without notice are still legal in the case of posting obscene content.

§4(1)(h) specifically addresses political candidates, disallowing the banning of a candidate "beginning on the date of qualification and ending on the date of the election or the date the candidate ceases to be a candidate". The law does not require a platform to rescind existing bans (etc.) when a person becomes a candidate (defined in Fla. Stat. 106.011(3)(e) as "A person who files qualification papers and subscribes to a candidate’s oath as required by law", which is a subset of the criteria under the campaign financing law and excludes write-in candidates), so insofar as Trump has been already banned and is not a candidate for public office, this law has no effect on him. It would have an effect on a future Trump who is not already banned, and who is an actual candidate.

Whether or not a "compelled speech" argument would persuade the courts is unclear. California's Prop 65 compels speech, as do cigarette warnings etc. Commercial speech can be compelled, provided that the law doing so addresses a compelling government interest. Preventing deceptive and unfair trade practices are legally already an accepted government interest. The law allows viewpoint-based discrimination: what is disallowed is not stating explicitly what viewpoints are prohibited. That does not mean that SCOTUS could not find that the requirements for explicitness and equal application of the rules to all users is itself an excessively onerous burden on a company's rights, but this narrows the grounds for overturning the law.

Answer 2

There are two reasons why this will probably not work.

First, the law is likely to be considered unconstitutional. Forcing a private entity to host views that they do not want to violates their first amendment rights.

If Facebook or Twitter are fined, they can ignore it, have it taken to the supreme court, and win.

Second, Florida cannot prevent Facebook from operating there and do not want a situation where that happens. Not only are there potential first amendment issues but Florida are too insignificant. Whereas larger entities such as the EU can dictate terms, Florida would simply be bluffing.

Answer 3

No

The bill does not apply to Donald Trump.

Trump is neither a "journalistic enterprise," nor a political candidate:

A social media platform may not willfully deplatform a candidate for office who is known by the social media platform to be a candidate, beginning on the date of qualification and ending on the date of the election or the date the candidate ceases to be a candidate.

Of course, Trump could become a political candidate in the future. Or he may indirectly gain greater voice through pro-Trump news reporters whose content could not be banned.

But as it currently stands, the bill would not, say, require Twitter to restore @realDonaldTrump. Even Twitter's original ban would have been okay under this law, since Trump was no longer a candidate.

Answer 4

No. The bill would not apply yet to Trump, and it likely violates the First Amendment.

SB 7072's deplatforming provisions would not apply to Trump yet.

SB 7072 prohibits social media platforms from deplatforming most candidates for public office during the period between their qualification as a candidate and the date the candidacy ends. "Deplatforming" is defined to include deleting or banning a user's account for more than 14 days. "Candidate" is a person "who files qualification papers and subscribes to a candidate’s oath as required by law."

At this point, Trump has not -- as far as I know -- filed qualification papers for any office or subscribed to a candidate's oath, so the bill does not currently apply to him. Once he filed papers, though, he would be within the scope of the law's protection.

The First Amendment would likely prohibit its deplatforming provisions from ever taking effect.

Florida may have forgotten, but it has tried this before and lost. It had enacted a "right of reply" statute that required publishers who criticized any political candidate to then print any response that the candidate wanted printed. The Florida Suprme Court -- being composed of seven of Florida Man -- thought this posed no First Amendment problems at all, but the U.S. Supreme Court unanimously reversed:

We see that, beginning with Associated Press, the Court has expressed sensitivity as to whether a restriction or requirement constituted the compulsion exerted by government on a newspaper to print that which it would not otherwise print. The clear implication has been that any such a compulsion to publish that which reason tells them should not be published is unconstitutional. A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution, and, like many other virtues, it cannot be legislated.

And the legislative findings in SB 7072 echo Tornillo's arguments from 50 years earlier. They emphasize the increased prominence and monopoly-like market dominance of social-media companies, the "unfairness" of deplatforming and shadow bans, and the importance of fostering First Amendment-protected speech. But the Court rejected all those rationales for compelling speech:

The Florida statute fails to clear the barriers of the First Amendment because of its intrusion into the function of editors. A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. ... The decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials -- whether fair or unfair -- constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time.

Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 258 (1974)

It seems quite unlikely that the courts would treat Facebook or Twitter any differently based on the fact that they are not members of the institutional press; instead, the Court applies the same principles to compelled-speech cases involving individuals and businesses. Most directly on point is Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995), where the Court said that if a group is organizing a parade, the state may not compel the group to include "a group imparting a message the organizers do not wish to convey."

Our holding today rests not on any particular view about the Council's message but on the Nation's commitment to protect freedom of speech. Disapproval of a private speaker's statement does not legitimize use of the Commonwealth's power to compel the speaker to alter the message by including one more acceptable to others.

The Court reached similar outcomes in other cases as well. See, e.g., Wooley v. Maynard, 430 U.S. 705, 715 (1977) (“The First Amendment protects the right of individuals to hold a point of view different from the majority and to refuse to foster, in the way New Hampshire commands, an idea they find morally objectionable.”); Board of Education v. Barnette, 319 U.S. 624, 642 (1943) (“We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control. ”)

Besides the compelled-speech problem, SB 7072 also runs into trouble it is a content-based restriction on speech. Speech by candidates is protected; speech by others is not. Speech by a "theme park or entertainment complex" is subject to the act; speech by others is not. Because it discriminates based on the speaker, it is treated as a content-based restriction subject to strict scrutiny. Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 340 (2010) (“Prohibited, too, are restrictions distinguishing among different speakers, allowing speech by some but not others.”)

To survive a challenge, then, Florida would need to identify a compelling governmental interest advanced by its law and prove that SB 7072's requirements are the least-restrictive means of achieving that interest. It won't be able to do that; even if facilitating candidate speech is a compelling governmental interest, the state can find less restrictive means of doing so, whether that's giving candidates airtime on public-access channels, hosting content on florida.gov, or setting up its own social-media site.

Answer 5

No, but Yes.

So what the bill does is fine a social media platform opperating in the State of Florida (Legally speaking having an internet presences in Florida counts) $100,000 per day per instance. The Social Media platform does not need to comply with the rule if they pay the fine. But that's a lot of money to expend on bans on individuals, so they likely will either comply or fight through the court system.

Outright refusing to pay the fine and not proceeding on legal action to challenge the law will result in contempt of court charges against the offender, which are much more entrenched law that is much more difficult to fight.

Banking on SCOTUS striking this law down is not something to count on as just a straight numbers case, SCOTUS is more likely to not hear the case than render a decision. It will take four justices deciding to hear the case for it to get to a hearing and they only take 200 of 10,000 cases that they are petitioned to hear per year.

That said, at least one Justice has published a dissenting opinion in a recently rejected case that basically supports this type of law's existence (SCOTUS doesn't typically write opinions on why a case was rejected, so having one is rare and should be taken as a significant statement on the part of the Justices as to how they would rule).

Finally, with all this said, it might be too little too late as Trump specifically might not have a case, as he was banned from Twitter prior to this law being enacted, as the U.S. Constitution bars Laws from being enforceable Ex Post Facto. On the other hand, if Trump was to run for office in 2024, it might cause a legal question of does the count start over after he officially announces his campaign.

Another issue that the courts will look at is that the Florida Law could be struck as unconstitutional because it could run counter to the Communications Decency Act (section 230) which immunizes websites from suit for this kind of behavior. As the CDA is federal law, constitutionally it trumps (pun not intended) state law that are in conflict with it, which this could be ruled as, though some of the complaints against Sec. 230 is that it is highly dated legislation that needs to be updated to reflect social media, which wasn't a thing when it was written in 1996.

As of time of writing, the law is too new and untested to say with any certainty what social media websites will do when they run afoul of this situation. But given a long history of social media banning politicians and politically engaged users from both sides of the aisle on a host of issues, it's likely going to come up soon. We're not far off from 2022 elections.