and Trump went so far as to threaten a veto of a crucial defense spending bill if it didn’t include a full repeal of Section 230 cfr.org cfr.org . (In the end, Congress passed the defense bill without the repeal, Trump vetoed it, and Congress overrode his veto – a rare rebuke – in the final days of 2020.)
It was in the states, however, that Trump’s allies took the most concrete action on this front. In 2021, Florida and Texas – led by Republican governors Ron DeSantis and Greg Abbott – enacted first-of-their-kind laws regulating social media content moderation. These laws were direct responses to Trump’s de-platforming and the broader belief (not supported by empirical evidence) that Big Tech “censors” conservatives. Governor DeSantis explicitly cited Twitter banning Trump as impetus, saying Florida must protect citizens from “Silicon Valley elites” who “silence conservative voices” vox.com .
Florida’s law (SB 7072, the Stop Social Media Censorship Act), signed in May 2021, did several things: it prohibited social media companies from banning or de-platforming any political candidates (with fines of $250,000 per day if a statewide candidate is banned) vox.com ; it gave the state or individuals a right to sue platforms if they felt content was removed unfairly; and it required companies to publish detailed moderation standards and apply them consistently vox.com vox.com . Amusingly, the Florida law also exempted any platform owned by a company that operates a theme park in the state (a carve-out widely seen as a favor to Disney – which owns media platforms – though Disney later incurred DeSantis’s wrath on other issues) vox.com . Governor DeSantis declared Florida was “taking back the virtual public square for free expression”, but civil liberties groups saw it differently. NetChoice and CCIA, tech industry groups, immediately sued Florida, arguing the law violated the First Amendment by forcing private websites to host speech they didn’t want vox.com . A federal judge agreed and blocked the law in June 2021, and in May 2022 the 11th Circuit U.S. Court of Appeals upheld that injunction vox.com vox.com . The appeals court found that the key provisions of Florida’s law likely infringed the platforms’ constitutional right to decide what content to publish (a form of editorial judgment protected by Supreme Court precedents) vox.com . The court noted it was “substantially likely” the law violated the First Amendment by compelling speech and interfering with editorial discretion vox.com . However, the court did allow minor parts of the law (like requiring platforms to disclose their moderation rules and provide users notice of changes) to take effect vox.com . DeSantis’s administration was not pleased and sought Supreme Court review.
Texas’s law (HB 20), enacted September 2021, was even more aggressive. It forbids large social media platforms (50+ million users) from “blocking, banning, removing, deplatforming, demonetizing, de-boosting, or otherwise discriminating against expression” based on the user’s viewpoint scotusblog.com scotusblog.com . In plainer terms, under Texas law a company like Facebook or Twitter cannot remove or down-rank content simply because it’s hate speech or misinformation, if the poster alleges it’s viewpoint discrimination. The law allows Texas residents or the state attorney general to sue platforms for alleged violations. Texas AG Ken Paxton, a vocal conservative firebrand, immediately cast it as a victory for “free speech” against “Big Tech’s censorship.” Tech companies sued Texas as well, and a district judge blocked the law – but in an unexpected twist, in September 2022 the Fifth Circuit Court of Appeals upheld Texas’s law in a sweeping, iconoclastic decision itif.org eff.org . The Fifth Circuit majority reasoned that social platforms are more like common carriers or utilities with no First Amendment right to exclude speech. One judge wrote that the companies “exercise virtually no editorial control” and are not speakers – a view sharply at odds with other courts and experts techpolicy.press . The ruling stunned many in legal circles, with the Electronic Frontier Foundation calling it “disastrous” and contrary to decades of precedent eff.org .