Tallahassee, Florida—The Electronic Frontier Foundation (EFF) and Protect Democracy urged a federal judge to strike down Florida’s law banning Facebook, Twitter, and other platforms from suspending political candidates’ accounts, saying it unconstitutionally interferes with the First Amendment rights of the companies and their users, and forces companies to give politicians’ speech preferential treatment that other users are denied.
EFF has long criticized large online platforms’ content moderation practices as opaque, inconsistent, and unfair because they often remove legitimate speech and disproportionately harm marginalized populations that struggle to be heard. These are serious problems that have real world consequences, but they don’t justify a law that violates the free speech rights of internet users who don’t happen to be Florida politicians and the private online services on which they rely, EFF said in a brief filed today in U.S. District Court for the Northern District of Florida.
“The First Amendment prevents the government from forcing private publishers to publish the government’s preferred speech, and from forcing them to favor politicians over other speakers. This is a fundamental principle of our democracy,” said EFF Civil Liberties Director David Greene.
The Supreme Court in 1974 unanimously rejected a Florida law requiring newspapers to print candidates’ replies to editorials criticizing them. Government interference with decisions by private entities to edit and curate content is anathema to free speech, the court said.
“The same principle applies here to S.B. 7072,” said Greene.
Florida Governor Ron DeSantis signed the law, set to take effect July 1, to punish social media companies for their speech moderation practices. It follows Facebook’s and Twitter’s bans on former President Donald Trump’s accounts and complaints by lawmakers of both parties that platforms have too much control over what can be said on the internet.
The law gives preferential treatment to political candidates, preventing platforms at any point before an election from canceling their accounts. This gives candidates free rein to violate any platform’s rules with impunity, even when it causes abuse or harassment, or when the speech is unprotected by the First Amendment. Their posts cannot be de-prioritized or notated; all other users receive no such privilege. The law also limits platforms’ ability to moderate content by entities and individuals with large numbers of followers or readers.
S.B. 7072 does mandate that platforms notify users about takedowns, use clear moderation standards, and take other steps to be more transparent. These are laudable provisions. But the overall framework of the law is unconstitutional. Instead, platforms could address unfair content moderation practices through voluntarily adopting a human rights framework for speech curation such as the Santa Clara Principles.
“Internet users should demand transparency, consistency, and due process in platforms’ removal process,” said EFF Senior Staff Attorney Aaron Mackey. “These voluntary practices can help ensure content moderation comports with human rights principles to free expression without violating the First Amendment, as S.B. 7072 does.”
For the full amicus brief: