It was a Florida law granting political candidates a right to reply to unfavorable press coverage that, nearly 50 years ago, prompted the Supreme Court’s declaration in Miami Herald Publishing Co. v. Tornillo that the First Amendment zealously guards a newspaper’s “exercise of editorial control and judgment.” Now, Florida is testing the boundaries of editorial freedom again with a new statute that purports to bar social media platforms from “willfully deplatforming a candidate” for office, backed by stiff daily fines for any site that fails to comply.
The rhymes between the moments are more than a little eerie. As the New York Times noted at the time, President Richard Nixon was a vocal supporter of proposals for a federal right-to-reply statute, and the debate surrounding the Tornillo case was shadowed by “the reality of Watergate, where a vigorous press broke through repeated official White House denials of wrongdoing.” Florida’s law, as its backers have made clear, is a late-breaking response to the decisions Facebook, Twitter, and a number of other platforms made to ban former President Donald Trump after the Jan. 6 riot at the U.S. Capitol. (On Wednesday, Facebook’s Oversight Board upheld the ban but asked the company to review its indefinite duration.)
As TechFreedom’s Corbin Barthold and Berin Szóka argued in Lawfare in March, the constitutionality of the Florida statute is doubtful in the extreme. On top of its prohibition on deplatforming political candidates, the law insists that platforms “apply censorship, deplatforming, and shadow banning standards in a consistent manner” and introduces a number of granular limits on the circumstances under which sites can enforce, or change, their rules. The law is likely to be challenged on First Amendment grounds, and you can expect that Tornillo will take center stage in arguments that it strikes at the heartland of platforms’ editorial discretion.
The law’s oddest provision, probably, is a carveout for content providers that also “own and operate a theme park or entertainment complex.” (Both Disney and Comcast own theme parks in Florida and operate platforms that could otherwise be subject to the law.)
Query whether well-resourced social media platforms would rather litigate the law’s constitutionality or buy up a roller coaster or two to get in on the safe harbor. We’ll be following developments surrounding the Florida law as they unfold.
The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Mailyn Fidler.