Burning the House to Roast a Pig: Examining Florida's Controversial Social Media Law

• Publication year: 2022

Burning the House to Roast a Pig: Examining Florida's Controversial Social Media Law

Wes P. Rahn

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Burning the House to Roast a Pig: Examining Florida's Controversial Social Media Law

Wes P. Rahn^*

I. Introduction

The recent proliferation of social media platforms has revolutionized the way individuals convey ideas and communicate with one another. Social media has quickly become the most dominate form of communication, surpassing more traditional modes of communication such as newspapers and television. It is estimated that over two-thirds of American adults now use social networking sites.¹ Moreover, an astonishing 90% of young adults use social media.² Social media has not only become an integral part of American culture in terms of entertainment and communication, but has also become a useful tool for politicians and the electorate who wish to engage in political discourse. Social media sites like Facebook, Twitter, and Instagram enable politicians and candidates running for political office to reach a wide base of voters with targeted campaign advertisements. Consequently, between January 2019 and october 2020, both Joseph Biden and Donald Trump collectively spent a whopping $201 million on Facebook advertisements alone.³ Moreover, it is impossible to calculate the

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insurmountable value of advertising that candidates receive from individual users on social media who share posts supporting a particular candidate at their own volition.

Due to the unique ability to provide a forum for candidates and voters to engage in political discourse, social media platforms have garnered tremendous influence over elections and their outcomes. These platforms have become the new town hall where individuals are influenced by ideas and users often debate one another on a variety of topics. While social media providers often claim to be independent unbiased networks, there are widespread allegations that these providers use their immense political influence to favor candidates and users who have liberal leanings. In response to these allegations, several state lawmakers have drafted laws aimed at regulating social media platforms and their allegedly biased influence on our political system. Below, I will discuss the legality of such laws by examining the intersectionality of social media platforms, preexisting federal law, and the United States Constitution.

II. Background

United States politics have grown increasingly partisan over the last decade. Some Americans now fear that the partisan divide has infiltrated social media platforms and empowered such platforms to silence those with opposing political beliefs. The most common allegation is that social media companies censor politically right-leaning accounts and use algorithms to suppress the number of users that engage with posts shared by conservative accounts. Critics of the algorithms claim that users with conservative ideologies do not have nearly the same amount of engagement as users with more liberal views. However, while companies such as Twitter admit that they utilize algorithms to provide a more personalized experience to their users, former Twitter CEO, Jack Dorsey, has denied that such algorithms are used to suppress those with conservative ideologies.⁴ Facebook CEO and founder, Mark Zuckerberg, has echoed similar sentiments. Zuckerberg has defended Facebook's algorithms, adding that Facebook is a "platform for all ideas."⁵

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Another common allegation is that social media platforms unfairly ban conservative users based on their political ideologies. Proponents of this theory claim that conservative voices, such as former President Donald Trump, are frequently banned from platforms simply because their political views run contrary to those of Facebook, Twitter, YouTube, and other providers. Following the U.S. Capitol protest that occurred on January 6, 2021, Twitter permanently banned former President Trump from the platform. Shortly thereafter, Facebook and YouTube followed suit and banned the controversial politician indefinitely.⁶ Twitter issued a statement declaring that "[a]fter close review of recent Tweets from the @realDonaldTrump account and the context around them we have permanently suspended the account due to the risk of further incitement of violence."⁷ All three platforms assert that the former President was banned for inciting violence, however those statements have not satisfied a vocal minority who insist that Trump was wrongfully removed from the platforms due to partisan motivations.

In an effort to diminish the perceived influence that social media companies have on political discourse, Republican lawmakers have begun to pass laws aimed at regulating social media companies, the algorithms they use, and the methods in which they ban or censor content. Florida Governor Ron DeSantis recently became the first governor to sign such legislation.⁸ However, before examining the Florida bill, it is important to understand existing laws that protect private companies like social media providers from unwanted government interference. These companies are private entities, and they are afforded many of the same protections and rights under the United States Constitution as ordinary citizens. Is it constitutional under the First Amendment for the government to regulate the way social media platforms monitor speech on their site? Apart from the Constitution, are there existing federal laws that safeguard social media platforms who wish to censor certain users? These questions are

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paramount to understanding whether state or federal governments have the authority to regulate social media platforms and the content they choose to provide.

III. First Amendment and the Internet

The First Amendment of the United States Constitution is perhaps the most well-known and widely cited constitutional provision. The amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."⁹ While the language of the amendment is straightforward, the application of the law to speech over the internet is far less elementary.

A. The Spectrum of First Amendment Scrutiny

Different forms of media are subject to different levels of First Amendment protections. The United States Supreme Court has held that "[e]ach medium of expression . . . must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems."¹⁰ For example, out of all forms of communication, broadcast media has received the most limited First Amendment protection.¹¹ In reaching this conclusion, courts have reasoned that broadcast media has established "a uniquely pervasive presence in the lives of all Americans," and "material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder."¹² Accordingly, many laws regulating speech over broadcast media have been upheld, and there has been an extensive history of government regulation of broadcast media providers.¹³ Conversely, while broadcast media providers receive the most limited First Amendment protection, newspapers and other print mediums enjoy the highest degree of protection under the law. There, courts have held that any compulsion by government on newspapers, which requires them to publish that which reason tells

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them they should not, is unconstitutional.¹⁴ These holdings have established a spectrum of how laws regulating speech should be applied differently under the First Amendment depending on the form of expression.

In Reno v. American Civil Liberties Union,¹⁵ the Supreme Court addressed the issue of how to treat speech on the internet under the First Amendment. There, the Court held that internet speech should receive the same First Amendment protection as other speech and the factors that favored government regulation of speech on broadcast platforms are "not present in cyberspace."¹⁶ The Court reasoned that the internet is not as invasive as radio and television because "communications over the Internet do not 'invade' an individual's home or appear on one's computer screen unbidden."¹⁷ Also, unlike the scarcity of broadcast media at the time Congress first began to regulate it, the internet is widely available to nearly every American. The court presumed that government regulation of speech on the internet is "more likely to interfere with the free exchange of ideas than to encourage it."¹⁸ Therefore, the Court held that there was no basis for limiting the level of First Amendment scrutiny that should be applied to speech on the internet.¹⁹

While the internet does generally enjoy the highest level of First Amendment protection, that is not to say that speech on the internet cannot be regulated. The First Amendment does not guarantee that all speech is safe from government regulation. In fact, several forms of speech such as obscenity, libelous speech, and incitements to riot are not entitled to First Amendment protection and may be banned outright.²⁰ However, as long as internet speech does not contain any of these exceptions, the speech will be entitled to the highest level of protection.²¹ Such protected speech includes speech that may be considered by some to be offensive: "[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it."²² In conclusion, speech on the internet should be treated no differently than

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any other speech, and therefore, should enjoy full First Amendment protection so long as the speech is not obscene, libelous, or an incitement of violence.

B. Internet Service Providers

The First Amendment prohibits both...