Regulating how powerful social media companies control user content is “little different from traditional common carrier regulation long thought to be constitutionally permissible,” said Florida Monday at U.S. District Court in Tallahassee. The state opposed internet industry groups’ motion for preliminary injunction, arguing that Communications Decency Act Section 230 doesn’t preempt Florida from regulating networks that censor free speech: Plaintiffs may say sites are businesses not subject to the First Amendment, but if “Section 230 creates a broad law-free zone in which internet companies can censor however they like, even in bad faith, then serious questions would arise about whether their censorship constitutes state action.” Even if the court disagrees social networks are state actors, “there is nevertheless state action to whatever extent Section 230 preempts Florida law,” argued Florida, citing a 1956 Supreme Court case, Railway Employees’ Department v. Hanson. The Supreme Court, in 2006’s Rumsfeld v. FAIR and 1980’s PruneYard Shopping Center v. Robins, said the First Amendment gives government wide latitude to regulate, Florida said. A footnote responded to plaintiffs’ incredulity about the law exempting companies that own Florida theme parks, which could include Disney and Comcast. It “only applies to a handful of entities, none of which operates a social media platform of significant size,” Florida said. “The narrow exception survives intermediate scrutiny, and in any event should be severed from the rest of the Act if the Court deems it unconstitutional.” Virtual oral argument is June 28 at 1:30 p.m. Judge Robert Hinkle said he plans to rule on preliminary injunction by end-of-day June 30 (see 2106100059). The court received amicus briefs opposing the state law last week, including from the Internet Association, Electronic Frontier Foundation, American Civil Liberties Union and TechFreedom. It might seem “counterintuitive,” but “the answer to Florida lawmakers’ concerns ... is to preserve the constitutional status quo,” wrote EFF. The law vests Florida “with the pure power of the censor,” said ACLU and press and writer groups. Common carriage rules may not be applied to social media, said TechFreedom.
Section 230
Senate Commerce Committee ranking member Roger Wicker, R-Miss., filed Thursday his Promoting Rights and Online Speech Protections to Ensure Every Consumer is Heard (Pro-Speech) Act. The bill was as expected (see our report here). It would regulate online platforms like common carriers. The measure would bar social media from actions against users based on racial, sexual, religious, partisan or ethnic grounds. It would bar platforms from blocking or discriminating against competing platforms by declaring such actions presumptively anti-competitive. It would let the FTC to use Section 5 authority to enforce the law. The Pro-Speech Act should “make it clear that these large internet tech platforms cannot discriminate based on their own opinions and based on what they think the public should and should not be allowed to hear,” Wicker told a news conference on Republicans’ concerns about Big Tech “censorship” related to the pandemic. “This is a serious, grave threat to freedom and the open exchange of ideas under” the Constitution. FCC Commissioner Brendan Carr praised the legislation and believes it should be enacted in concert with Communications Decency Act Section 230 revamp. The bill “would give Big Tech a simple choice: either stop blocking people from posting and accessing lawful content or declare that you are acting as a publisher and accept the responsibilities that come with that status,” he said. It “would also bring much needed transparency to Big Tech’s practices and rein in their anticompetitive conduct.” NetChoice opposes the measure. It “may look like it checks some boxes for conservatives, but in practice it will make the internet impossible to use by forcing all of us to sift through the worst of the internet just to connect with our friends and family,” said General Counsel Carl Szabo in a statement. “The bill’s advocates have not thought through its wide array of harmful consequences like the simultaneous proliferation of hate speech, sexism, racism, and other types of awful but lawful content.”
President Joe Biden revoked former President Donald Trump’s bans on U.S. transactions with major Chinese apps. Biden replaced them Wednesday with an executive order directing the Commerce Department to evaluate “transactions involving” apps “that may pose an undue risk of sabotage or subversion of” U.S. information and communications technology. Last month, Biden revoked Trump’s social media order that sought an FCC rulemaking to clarify interpretation of Communications Decency Act Section 230 (see 2105140074).
Internet industry groups sued Florida over its social media law that makes it unlawful for sites to deplatform political candidates and requires sites be transparent about policing. NetChoice and the Computer and Communications Industry Association sued Thursday in U.S. District Court in Tallahassee. “The Act is so rife with fundamental infirmities that it appears to have been enacted without any regard for the Constitution,” they wrote. Our earlier news bulletin is here.
Internet industry groups sued Florida over its social media law that makes it unlawful for sites to deplatform political candidates and requires sites to be transparent about policing.
Regulators should immediately break up Facebook and act against its entities, protesters said outside the company’s lobbying headquarters in Washington on Tuesday. Participants told us the company hasn’t been responsive to specific demands, is incapable of self-correcting and has built a large U.S. corporate lobbying operation.
There’s no obvious path for the FTC or the FCC to regulate online platform speech, FTC Commissioner Noah Phillips and FCC Commissioner Nathan Simington agreed Wednesday. Policymakers struggle to regulate speech that violates community standards when they can’t identify consensus standards, Simington told a Federalist Society event, noting he’s not confident the FCC can or should do anything about speech on digital platforms. “There’s no consensus for speech regulation in the digital media era” and no obvious regulatory path forward, he said.
Sens. Richard Blumenthal, D-Conn., and Lindsey Graham, R-S.C., are “pretty close” to reintroducing the Earn It Act (see 2008050039), without major changes anticipated, Blumenthal told us. He led a Consumer Protection Subcommittee hearing Tuesday, where witnesses offered potential solutions for online child exploitation. Blumenthal and ranking member Marsha Blackburn, R-Tenn., criticized TikTok for refusing to testify.
President Joe Biden revoked former President Donald Trump’s executive order aimed at addressing what Trump saw as social media censorship (see 2005280060). Trump’s sought an FCC rulemaking to clarify its interpretation of liability protections under Communications Decency Act Section 230. That proceeding didn't advance during the closing days of Ajit Pai's chairmanship (see 2101050060) and hasn't seen movement. Friday's EO also nixed other Trump presidential directives. The Center for Democracy & Technology praised Biden for killing the social media EO.
A Texas social media regulation bill cleared the House State Affairs Committee 8-5 Friday. The Senate earlier passed SB-12, which would allow private lawsuits against social media companies that moderate content. It’s one of many state bills seeking to rein in social media amid the federal debate about Communications Decency Act Section 230 (see 2104190030).