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Florida’s ban on bans will test First Amendment rights of social media companies

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Florida governor Ron DeSantis has signed into law a restriction on social media companies’ ability to ban candidates for state offices and news outlets, and in doing so offered a direct challenge to those companies’ perceived free speech rights. The law is almost certain to be challenged in court as both unconstitutional and in direct conflict with federal rules.

The law, Florida Senate Bill 7072, provides several new checks on tech and social media companies. Among other things:

  • Platforms cannot ban or deprioritize candidates for state office.
  • Platforms cannot ban or deprioritize any news outlet meeting certain size requirements.
  • Platforms must be transparent about moderation processes and give users notice of moderation actions.
  • Users and the state will have the right to sue companies that violate the law. Statutory fines could be as high as $250,000 per day for some offenses.

The law establishes rules affecting these companies’ moderation practices; that much is clear. But whether doing so amounts to censorship — actual government censorship, not the general concept of limitation frequently associated with the word — is an open question, if a somewhat obvious one, that will likely be forced by legal action against SB 7072.

While there is a great deal of circumstantial precedent and analysis, the problem of “are moderation practices of social media companies protected by the First Amendment” is as yet unsettled. Legal scholars and existing cases fall strongly on the side of “yes,” but there is no single definitive precedent that Facebook or Twitter can point to.

The First Amendment argument starts with the idea that although social media are very unlike newspapers or book publishers, they are protected in much the same way by the Constitution from government interference. “Free speech” is a term that is interpreted extremely liberally, but if a company spending money is considered a protected expression of ideas, it’s not a stretch to suggest that same company applying a policy of hosting or not hosting content should be as well. If it is, then the government is prohibited from interfering with it beyond very narrow definitions of unprotected speech (think shouting “fire” in a crowded theater). That would sink Florida’s law on constitutional grounds.

The other conflict is with federal law, specifically the much-discussed Section 230, which protects companies from being liable for content they publish (i.e. the creator is responsible instead), and also for the choice to take down content via rules of their own choice. As the law’s co-author Senator Ron Wyden (D-OR) has put it, this gives those companies both a shield and a sword with which to do battle against risky speech on their platforms.

But SB 7072 removes both sword and shield: It would limit who can be moderated, and also creates a novel cause for legal action against the companies for their remaining moderation practices.

Federal and state law are often in disagreement, and there is no handbook for how to reconcile them. On one hand, witness raids of state-legalized marijuana shops and farms by federal authorities. On the other, observe how strong consumer protection laws at the state level aren’t preempted by weaker federal ones because to do so would put people at risk.

On the matter of Section 230 it’s not straightforward who is protecting whom. Florida’s current state government claims that it is protecting “real Floridians” against the “Silicon Valley elites.” But no doubt those elites (and let us be candid — that is exactly what they are) will point out that in fact this is a clear-cut case of government overreach, censorship in the literal sense.

These strong legal objections will inform the inevitable lawsuits by the companies affected, which will probably be filed ahead of the law taking effect and aim to have it overturned.

Interestingly, two companies that will not be affected by the law are two of the biggest, most uncompromising corporations in the world: Disney and Comcast. Why, you ask? Because the law has a special exemption for any company “that owns and operates a theme park or entertainment complex” of a certain size.

That’s right, there’s a Mouse-shaped hole in this law — and Comcast, which owns Universal Studios, just happens to fit through as well. Notably this was added in an amendment, suggesting two of the largest employers in the state were unhappy at the idea of new liabilities for any of their digital properties.

This naked pandering to local corporate donors puts proponents of this law at something of an ethical disadvantage in their righteous battle against the elites, but favor may be moot in a few months’ time when the legal challenges, probably being drafted at this moment, call for an injunction against SB 7072.

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Wanda Sykes On Why Meta Reinstated Trump

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Wanda Sykes On Why Meta Reinstated Trump

Facebook and Instagram’s parent company Meta announced this week that twice-impeached former president Donald Trump will be reinstated on both platforms, after a two-year suspension.

“The Daily Show” guest host Wanda Sykes was not at all surprised, saying that it’s just a money-grabbing stunt.

In their announcement on Wednesday, Meta stated that “the public should be able to hear what their politicians are saying — the good, the bad and the ugly — so that they can make informed choices at the ballot box.” And to that, Wanda Sykes said “Phooey!”

“Look, we all know Facebook is losing a ton of money and they want that Trump attention back,” Sykes mocked. “They need a hit! Trump is their ‘White Lotus.’”

She added that Trump is “the Jennifer Coolidge of the internet,” breaking out her own impression of the award-winning actress. That said, Sykes does think there needs to be some intense moderation of Trump’s accounts. But she had an idea for that, too.

“I think maybe for the first week, they should just allow him to only post cat photos. You know, let’s see how it goes,” Sykes joked. “If you see a bunch of cats storming the Capitol? Although adorable, shut it down.”

You can watch the full segment from “The Daily Show” in the video above.

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Is This the Real Reason Google, Amazon, Facebook and Microsoft Are Having Layoffs?

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Is This the Real Reason Google, Amazon, Facebook and Microsoft Are Having Layoffs?

Are 51,000 people losing their jobs because their employers want to shift the balance of power? Is the current wave of big-tech layoffs really intended as a way of weakening tech employees’ confidence and gaining a stronger negotiating position for their employers? That’s what several tech industry …

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Fake Facebook profile leaves Nelson auctioneer stressed and worried

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Fake Facebook profile leaves Nelson auctioneer stressed and worried

Lipscombe Auction House owner Warwick Savage with a fake Facebook account using his name he is trying to get taken down.

Martin De Ruyter/Stuff

Lipscombe Auction House owner Warwick Savage with a fake Facebook account using his name he is trying to get taken down.

Auctioneer Warwick Savage didn’t have a personal Facebook profile.

But someone pretending to be him set one up, and that person, or persons stole his identity and amassed 1500 friend by Friday – the vast majority of whom were none the wiser the man on the screen was not who they thought he was.

The profile first came to the attention of the Nelson auctioneer late last week, when a friend of his stepdaughter’s commented that she had accepted Savage’s friend request: “and she said ‘he doesn’t have a Facebook page. He doesn’t have a Facebook profile’. So all of a sudden it came to the forefront.”

What was bizarre about the fake profile is how sophisticated it was: few of Savage’s close friends twigged when sent a friend request.

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The photos had been taken off the website of his business, Lipscombe Auction House, and the posts, promoting auctions, appeared legitimate. Lipscombe Auction House has a genuine Facebook page for the business and the fake and genuine pages looked similar.

On Friday after queries from Stuff meta removed the Facebook page for “for violating our policies”.

A spokesperson said it was “committed to safeguarding the integrity of our services, and worked hard to protect our community from fake accounts and other inauthentic behaviour.”

It continued to invest in AI to improve its enforcement and strengthen its review systems it said.

Someone has set up a fake account of auctioneer Warwick Savage and despite people contacting Facebook and telling them it was fake the social media company won’t take it down.

SUPPLIED/Nelson Mail

Someone has set up a fake account of auctioneer Warwick Savage and despite people contacting Facebook and telling them it was fake the social media company won’t take it down.

Savage was happy the page had finally been removed but frustrated it had taken so long for it to have occurred.

Savage had reported the profile to the police, who referred him to Netsafe. Multiple friends also wrote to Facebook asking for the page to be removed, only to receive the message that “ultimately, we decided not to take the profile down”.

“We take action on profiles that pose a danger to other people or that are harmful to the community,” the Facebook Support message read.

Savage said there should be more accountability from social media.

The profile appeared to have been uploaded on November 26, 2022, but the majority of the account activity had been this year, Savage said.

Several people who accepted his friend requests were Nelson City councillors, and other well known people in Nelson.

Someone has set up a fake account of Lipscombe Auction house owner Warwick Savage on facebook that now has over 1100 friends using information from his legitimate website.

SUPPLIED/Nelson Mail

Someone has set up a fake account of Lipscombe Auction house owner Warwick Savage on facebook that now has over 1100 friends using information from his legitimate website.

Before the media got involved Savage said there hadn’t appeared to be much interest from Facebook in doing anything about it.

“And I think it would be a huge worry for anybody. Because basically, they’ve stolen my identity.”

Savage said he was “obviously” concerned about reputational damage. But he was also concerned about having his business targeted.

“It all looks very harmless at the moment, but why would a person bother creating this to not have an end objective? Are messages going out to people there who are friends that aren’t nice messages?”

The situation has left him feeling “stressed”, he said, and particularly worried about the possibility of the person using his name posting something nasty.

“I don’t want to be going around trying to defend myself and Lipscombe’s to 1000 people,” he said.

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