Florida’s New Social Media Law Violates the First Amendment
(Bloomberg Opinion) -- 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” — and imposes a $250,000 per day fine for violations. It’s obviously aimed at the deplatforming of former 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.
Yet those First Amendment problems are the heart of the matter. Under current constitutional law, social media platforms — like all companies — enjoy the same protections of free speech and association that belong to individuals.
In essence, Florida is telling the platforms that they cannot choose what speech to allow on their platforms, nor choose the users with whom they wish to associate. That’s a double no-no, in First Amendment terms. It amounts to compelled speech and compelled association, both of which clearly violate the Constitution.
Social media platforms have terms of service (often called “community guidelines”) that restrict speech substantially more than a government would be allowed to do. They routinely use these guidelines to remove racist, sexist, homophobic and transphobic speech. That speech would be protected by the First Amendment if it were the government trying to sanction it. Unlike private companies, the government has an obligation under First Amendment doctrine to make sure its regulation of expression is viewpoint neutral. That means the government can’t ordinarily prohibit speech that’s offensive to traditionally marginalized or vulnerable groups — because doing so would disfavor the viewpoint of the racists and haters.
But social media companies are not the government. And they themselves have First Amendment rights. That is, the platforms have the constitutional right to allow and disallow whatever speech they want on their platforms; and the corresponding right to dissociate themselves from speakers who break their terms of service, like Trump.
Conservatives who don’t like this state of affairs favor legislation, like the Florida law, that would impose more permissive standards of content moderation on the platforms. Their concern is that the platforms’ content moderation standards aren’t neutral.
But being a for-profit corporation doesn’t mean losing free speech rights. The New York Times is a for-profit corporation, as is CNN, and for that matter Bloomberg. These for-profits are all in the news business. They are part of the free press that is explicitly mentioned in the First Amendment. They surely should not lose their First Amendment rights to free expression just by charging for their products.
And to be clear, nothing in the First Amendment says that only media companies get free speech protection. All kinds of companies in all kinds of lines of business sponsor speech, whether on their websites or elsewhere. That speech contributes to public discourse. For that reason, it deserves First Amendment protection.
Conservatives were on board with corporations having free-speech rights when Citizens United was decided, and defined speech, in the context of elections, as independent expenditures not coordinated with political campaigns. The Supreme Court ruled that such expenditures could not be limited by law because they could never give rise to the danger of quid pro quo corruption. That’s factually absurd: Money can of course corrupt politicians. But that part of the ruling rested on a highly questionable holding in the 1976 decision, Buckley v. Valeo, that campaign contributions and expenditures should be treated as forms of speech, rather than as money.
The idea that for-profit corporations enjoy First Amendment rights — defined as money — has been highly controversial among progressives ever since the Citizens United decision. Now, it’s conservatives, in Florida and elsewhere, who are acting as though corporations don’t have free speech rights. And this time, the speech is actual speech.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
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