Florida¡¯s new law punishing social media platforms that ban politicians for violating their terms of service is obviously unconstitutional, violating the companies¡¯ free speech and free association rights. But the law is a good opportunity to think about how the First Amendment applies to for-profit corporations and suggests reasons to think more deeply about the infamous 2010 Supreme Court decision, Citizens United v. FEC.
The key provision of the Florida law states that ¡°a social media platform may not willfully deplatform a candidate for office¡± ¡ª and imposes a $250,000 per day fine for violations. It¡¯s obviously aimed at the deplatforming of former U.S. President Donald Trump by Twitter, Facebook and others. (Disclosure: I advise Facebook on free expression issues and helped design the oversight board that recently upheld the Trump deplatforming; the opinions expressed in this column are, as always, altogether mine and not at all Facebook¡¯s.)
The law almost certainly violates Section 230 of the Communications Decency Act, which gives platforms a safe harbor against lawsuits for their content moderation decisions. For that reason, a federal court might invalidate the law on statutory grounds without ever ruling on its First Amendment problems.
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