Florida Anti-Censorship Proposal Seeks to Sidestep Section 230 Protections

Florida Gov. Ron DeSantis at the Hard Rock Stadium in Miami Gardens, Fla., on Jan. 6, 2021. (Joe Raedle/Getty Images)

Florida Gov. Ron DeSantis is taking a stand against social media censorship with a proposal that would allow tech platforms to be fined or sued for certain content-policing decisions.

While companies such as YouTube, Facebook, and Twitter enjoy broad liability protection under Section 230 of the Communications Decency Act of 1996, the proposal appears to attempt to sidestep those protections by asking for more transparency, tying anti-censorship measures to state election regulations, and giving users more control over content policing.

Section 230 shields internet platforms from liability for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”

Some have argued that social media companies have interpreted “otherwise objectionable” too broadly and that it wasn’t meant to encompass political speech that the companies claim to find “objectionable.”

The Florida proposal takes a different approach. It would first require that the companies publish their content policing standards. Major social media such as Facebook and Google-owned YouTube don’t fully explain their content policies, claiming it would lead to users dodging them. The law would apparently force them to fully reveal their standards.

Users would receive a “detailed explanation and written notice after being de-platformed or shadowbanned,” Florida House Speaker Chris Sprowls said at a Feb. 2 press conference, where DeSantis announced the proposal.

The law would also “stop frequent changes to terms of use, clearly communicate and obtain prior consent to changes,” DeSantis’s office said in a Feb. 2 statement.

Further, the bill would ban “arbitrarily censoring and/or de-platforming users,” which could possibly stop the companies from censoring on an ad hoc basis, beyond what their content rules say.

“When social media companies apply these standards unequally on users, this is discrimination, pure and simple,” DeSantis said during the press conference. “Can you imagine tolerating this kind of behavior in banking or in health care or in other industries?”

Online Civil Rights

The idea to make social media access a civil right of sorts and enforce it through state-level legislation was previously proposed in 2019 by conservative lawyer Will Chamberlain, the editor-in-chief of news website Human Events.

“It will be a very serious challenge to get a federal law passed protecting this civil right, given the current composition of Congress. But states with heavily Republican legislatures can pass laws that protect their state’s citizens from de-platforming,” he wrote in an op-ed.

“And if they do so, Facebook, Twitter, and Google will have to comply if they want to keep doing business in that state.”

To the critics who say regulating content policing opens the door to government censorship, he pointed out that the Supreme Court already ruled in 2017 that social media are “the modern public square” to which the government cannot prevent people’s access.

“The concerns about government regulation being turned around to constrain speech are simply unfounded,” he wrote.

Moreover, he proposed that instead of a regulatory agency, the enforcement of social media access should be left to courts.

The Florida proposal appears to follow that blueprint, promising to allow both Florida residents as well as its attorney general to sue the tech companies for violating the law.

Opting In or Out?

DeSantis also proposes to “give users the power to opt-out of algorithms” that tech companies use to sort and filter content.

A similar idea was proposed by author and Breitbart journalist Allum Bokhari in 2018.

He argued that there’s no need for social media companies to ban or delete any lawful content. Instead, they should give users the option to turn on any objectionable-content filters of their own volition.

Bokhari went further than DeSantis, proposing the filters should be “strictly opt-in” and any content a filter would apply to should be labeled as such so users would know what effects the filters would have on their news feeds.

“While it wouldn’t eliminate them as a political threat, opt-in filters would still severely hamper the ability of big tech CEOs to influence elections,” Bokhari said in an op-ed. “They would forever lose the power to permanently purge wrongthinkers from the digital public square. No matter how many filters they slap on a conservative account, users would still have to consciously choose not to view the content.”

Campaign Rules

DeSantis also wants to regulate and fine tech companies for election meddling.

“Big tech has been manipulating news content and designing algorithms to give the upper hand to their candidates of choice and they do so scot-free,” he said.

The proposed law would impose a $100,000-per-day fine on a company that disables the account of a Florida candidate for office.

“Any Floridian can de-platform any candidate they choose. They simply unsubscribe. And it’s a right that I believe belongs with the citizen,” DeSantis said.

“Further, if a technology company promotes a candidate for office against another, the value of that free promotion must be recorded as a political campaign contribution.”

Companies would also face daily fines if they use their algorithms to “suppress or prioritize” content related to candidates or ballot measures.

“The message is loud and clear: When it comes to elections in Florida, Big Tech should stay out of them,” the governor said.

Facebook, Google, and Twitter didn’t immediately respond to requests by The Epoch Times for comment on DeSantis’s proposal.