House Staff Analysis: PCB COM 21-01 Technology Transparency (Commerce Committee)
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- Congressional materials
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- 2021 3098 Commerce Committee Proposed Committee Bill Analyses Fn Pcb01 Com
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- 2021 3098 Commerce Committee Proposed Committee Bill Analyses Fn Pcb01 Com
Summary
A House of Representatives staff analysis dated February 28, 2021 of proposed committee bill PCB COM 21-01, Technology Transparency, sponsored by the Commerce Committee. The analysis states the bill would require social media platforms to publish standards for censoring, deplatforming and shadow banning users, notify users within 30 days of censoring or deplatforming, and ensure that candidates for office in Florida and journalistic enterprises are not deplatformed. It describes enforcement under the Florida Deceptive and Unfair Trade Practices Act, a private cause of action, Florida Elections Commission fines of $100,000 per day for deplatforming statewide candidates, and an Antitrust Violator Vendor List. The current-situation section reviews Section 230, FDUTPA, the First Amendment and the Supremacy Clause, and the analysis gives an effective date of July 1, 2021.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Cite this document
“House Staff Analysis: PCB COM 21-01 Technology Transparency (Commerce Committee).”
Original at www.flhouse.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/2021-3098-commerce-committee-proposed-committee-bill-analyses-fn-pcb01-com/
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HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: PCB COM 21-01 Technology Transparency
SPONSOR(S): Commerce Committee
TIED BILLS: IDEN./SIM. BILLS:
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
Orig. Comm.: Commerce Committee Wright Hamon
SUMMARY ANALYSIS
A section of the Federal Communications Decency Act (Section 230) provides immunity from liability for
information service providers and social media platforms that, in good faith, remove or restrict from their
services information deemed “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise
objectionable, whether or not such material is constitutionally protected.” While this immunity has fostered the
growth of certain parts of the internet, recently, there have been criticisms of the broad federal immunity
provision due to actions taken or not taken regarding the censorship of users by internet platforms.
Government regulators have recently investigated and initiated cases against certain platforms for antitrust
activities.
The bill provides that a social media platform must:
publish standards used for determining how to censor, deplatform, and shadow ban users, and
apply such standards in a consistent manner.
inform each user about any changes to its user rules, terms, and agreements before
implementing the changes and may not make changes more than once every 30 days.
notify the user within 30 days of censoring or deplatforming.
provide a user with information relating to the number of other individuals who were provided or
shown the user's content or posts upon request by the user.
provide users with an opt out of post-prioritization and shadow banning algorithms to allow
sequential or chronological posts and content.
ensure that candidates for office in Florida are not deplatformed and that their posts are not
shadow banned.
ensure that journalistic enterprises are not censored, deplatformed, or shadow banned.
A social media platform that fails to comply with these requirements may be found in violation of the Florida
Deceptive and Unfair Trade Practices Act by the Department of Legal Affairs (DLA). In addition, a user may
bring a private cause of action against a social media platform for failing to consistently apply certain standards
and for censoring or deplatforming without proper notice.
The bill prohibits social media platforms from deplatforming statewide candidates and allows the Florida
Elections Commission to fine a social media platform $100,000 per day for deplatforming statewide
candidates, and $10,000 per day for all other candidates. In addition, if a social media platform provides free
advertisements for a candidate, it is an in-kind contribution and the candidate must be notified.
If a social media platform has been convicted of or has been held civilly liable for state or federal antitrust
violations, such platform, or an affiliate of such, may be placed on the Antitrust Violator Vendor List by the
Department of Management Services and is then prohibited from contracting with public entities. In certain
circumstances, DLA may place a social media platform on such list temporarily.
The fiscal impact of the bill is indeterminate.
The bill provides an effective date of July 1, 2021.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives .
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FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Freedom of Speech and Internet Platforms - Current Situation
Section 230
The federal Communications Decency Act (CDA) was passed in 1996 “to protect children from sexually
explicit Internet content.”1 47 U.S. Code § 230 (Section 230) was added as an amendment to the CDA
to maintain the robust nature of Internet communication and, accordingly, to keep government
interference in the medium to a minimum.”2
Congress stated in Section 230 that “[i]t is the policy of the United States—(1) to promote the continued
development of the Internet and other interactive computer services and other interactive media; [and]
(2) to preserve the vibrant and competitive free market that presently exists for the Internet and other
interactive computer services, unfettered by Federal or State regulation.”3
Specifically, Section 230 states that no provider or user of an interactive computer service may be held
liable on account of:4
any action voluntarily taken in good faith to restrict access to or availability of material that the
provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing,
or otherwise objectionable, whether or not such material is constitutionally protected; or
any action taken to enable or make available to information content providers or others the
technical means to restrict access to material from any person or entity that is responsible for
the creation or development of information provided through any interactive computer service.
Section 230 “assuaged Congressional concern regarding the outcome of two inconsistent judicial
decisions,5 both of which “appl[ied] traditional defamation law to internet providers.”6 The first decision
held that an interactive computer service provider could not be liable for a third party's defamatory
statement ... but the second imposed liability where a service provider filtered content in an effort to
block obscene material.”7 To provide clarity, Section 230 provides that “[n]o provider ... of an interactive
computer service shall be treated as the publisher or speaker of any information provided by another
information content provider.8 In light of Congress's objectives, the Circuits are in general agreement
that the text of Section 230(c)(1) should be construed broadly in favor of immunity.9
Section 230 specifically addresses how the federal law affects other laws. Section 230 prohibits all
inconsistent causes of action and prohibits liability imposed under any State or local law.10 Section 230
does not affect federal criminal law, intellectual property law, the Electronic Communications Privacy
Act of 1986, or sex trafficking law.
1 Force v. Facebook, Inc., 934 F.3d 53, 63 (2d Cir. 2019) (citing FTC v. LeadClick Media, LLC, 838 F.3d 158, 173 (2d Cir.
2016) (citing 141 Cong. Rec. S1953 (daily ed. Feb. 1, 1995) (statement of Sen. Exon))).
2 Force, 934 F.3d at 63 (quoting Ricci v. Teamsters Union Local 456, 781 F.3d 25, 28 (2d Cir. 2015) (quoting Zeran v. Am.
Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997)).
3 47 U.S.C. § 230(b)(1)–(2).
4 47 U.S.C. § 230(c).
5 Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135 (S.D.N.Y. 1991) and Stratton Oakmont, Inc. v. Prodigy Servs. Co.,
No. 31063/94, 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995),
6 Force, 934 F.3d at 63 (quoting LeadClick, 838 F.3d at 173).
7 Force, 934 F.3d at 63 (quoting LeadClick, 838 F.3d at 173 (citing 141 Cong. Rec. H8469-70 (daily ed. Aug. 4, 1995
(statement of Rep. Cox))).
8 47 U.S.C. § 230(c)(1).
9 Force, 934 F.3d at 63 (quoting LeadClick, 838 F.3d at 173).
10 47 U.S.C. § 230(e).
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Recently, there have been criticisms of the broad immunity provisions or liability shields which force
individuals unhappy with third-party content to sue the user who posted it. While this immunity has
fostered the free flow of ideas on the Internet, critics have argued that Section 230 shields publishers
from liability for allowing harmful content.11 Congressional and executive proposals to limit immunity for
claims relating to platforms purposefully hosting content from those engaging in child exploitation,
terrorism, and cyber-stalking have been introduced.12 Bills have been filed that would require internet
platforms to have clear content moderation policies, submit detailed transparency reports, and remove
immunity for platforms that engage in certain behavioral advertising practices.13 Proposals have also
been offered to limit the liability shield for internet providers who restrict speech based on political
viewpoints.14
Both sides of the political aisle have claimed that internet platforms engage in political censorship and
unduly restrict viewpoints.15
Internet and Social Media Platforms
There are many ways in which individuals access computer systems and interact with systems and
other individuals on the Internet. Examples include:
Social media sites, which are websites and applications which allow users to communicate
informally with others, find people, and share similar interests;16
Internet platforms, which are servers used by an Internet provider to support Internet access by
their customers;17
Internet search engines, which are computer software used to search data (such as text or a
database) for specified information;18 and
Access software providers, which are providers of software or enabling tools for content
processing.19
Such platforms earn revenue through various modes and models. Examples include:
Data monetization.20 This uses data that is gathered and stored on the millions of users that
spend time on free content sites, including specific user location, browsing habits, buying
behavior, and unique interests. This data can be used to help e-commerce companies tailor
their marketing campaigns to a specific set of online consumers. Platforms that use this model
are typically free for users to use.21
11 Zoe Bedell and John Major, What’s Next for Section 230? A Roundup of Proposals Lawfare, (July 29, 2020)
https://www.lawfareblog.com/whats-next-section-230-roundup-proposals (last visited Feb. 25, 2021).
12 Id; United States Department of Justice, Department of Justice’s Review of Section 230 of the Communications
Decency Act of 1996, https://www.justice.gov/archives/ag/department-justice-s-review-section-230-communications-
decency-act-1996 (last visited Feb. 25, 2021); EARN IT Act of 2020, S.3398, 116th Cong. (2020).
13 Bedell, supra note 11; PACT Act, S.4066, 116th Cong. (2020); BAD ADS Act, S.4337, 116th Cong. (2020).
14 Bedell, supra note 11; Limiting Section 230 Immunity to Good Samaritans Act, S.3983, 116th Cong. (2020).
15 For example, on May 28, 2020, an executive order was issued by President Trump suggesting that websites “should
properly lose” their “limited liability shield” whenever they “remove or restrict access to content” not in good faith. Bedell,
supra note 11; Exec. Order No.13925, 85 Fed. Reg. 34079 (May 28, 2020).
16 DelValle Institute Learning Center, Social Media Platforms, https://delvalle.bphc.org/mod/wiki/view.php?pageid=65 (last
visited Feb. 24, 2021).
17 IGI Global, Internet Platform, https://www.igi-global.com/dictionary/internet-platform/15441 (last visited Feb. 24, 2021).
18 Merriam Webster, Search Engine, https://www.merriam-webster.com/dictionary/search%20engine (last visited Feb. 24,
2021).
19 Cornell Law School, Legal Information Institute, Access Software Provider,
https://www.law.cornell.edu/definitions/uscode.php?width=840&height=800&iframe=true&def_id=47-USC-629364878-
1237841280&term_occur=1&term_src=title:47:chapter:5:subchapter:II:part:I:section:230#:~:text=(4)%20Access%20softw
are%20provider%20The,C)%20transmit%2C%20receive%2C%20display (last visited Feb. 24, 2021).
20 The Alexander von Humboldt Institute for Internet and Society, How do digital platforms make their money?, July 29,
2019, https://www.hiig.de/en/how-do-digital-platforms-make-their-money/ (last visited Feb. 27, 2021).
21 Investopedia, How Do Internet Companies Profit with Free Services?,
https://www.investopedia.com/ask/answers/040215/how-do-internet-companies-profit-if-they-give-away-their-services-
free.asp#:~:text=Profit%20Through%20Advertising,content%20is%20through%20advertising%20revenue.&text=Each%2
0of%20these%20users%20represents,and%20services%20via%20the%20Internet. (last visited Feb. 27, 2021).
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Subscription or membership fees. This model requires users pay for a particular or unlimited
use of the platform infrastructure.22
Transaction fees. This model allows platforms to benefit from every transaction that is enabled
between two or more actors. An example is AirBnB, where users transacting on the site are
charged a fee.23
The Florida Deceptive and Unfair Trade Practices Act
The Florida Deceptive and Unfair Trade Practices Act (FDUTPA) is a consumer and business
protection measure that prohibits unfair methods of competition, unconscionable acts or practices, and
unfair or deceptive acts or practices in trade or commerce.24 The FDUTPA is based on federal law.25
For example, Florida has determined that the following acts or practices are unfair or deceptive:
Imposing unconscionable prices for the rental or lease of any dwelling unit or self-storage
facility during a period of declared state of emergency.26
Failing to abide by storage requirements for personal information and notice requirements for
data breaches of such information,27 and
Failing to abide by requirements for weight-loss programs.28
The state attorney or the Department of Legal Affairs (DLA) may bring actions when it is in the public
interest on behalf of consumers or governmental entities.29 The Office of the State Attorney (SAO) may
enforce violations of the FDUTPA if the violations take place in its jurisdiction. DLA has enforcement
authority if the violation is multi-jurisdictional, the state attorney defers in writing, or the state attorney
fails to act within 90 days after a written complaint is filed.30 Consumers may also file suit through
private actions.31
DLA and the SAO have powers to investigate FDUTPA claims, which include:32
administering oaths and affirmations,
subpoenaing witnesses or matter, and
collecting evidence.
DLA and the State Attorney, as enforcing authorities, may seek the following remedies:
Declaratory judgments;
Injunctive relief;
Actual damages on behalf of consumers and businesses;
Cease and desist orders; and
22 HIIG, supra note 20.
23 Id.
24 Chapter 73-124, L.O.F., and s. 501.202, F.S.
25 D. Matthew Allen, et. al., The Federal Character of Florida’s Deceptive and Unfair Trade Practices Act, 65 U. MIAMI L.
REV. 1083 (Summer 2011).
26 S. 501.160, F.S.
27 S. 501.171, F.S.
28 S. 501.0579, F.S.
29 s. 501.207(1)(c) and (2), F.S.; see s. 501.203(2), F.S. (defining “enforcing authority” and referring to the office of the
state attorney if a violation occurs in or affects the judicial circuit under the office’s jurisdiction; or the Department of Legal
Affairs if the violation occurs in more than one circuit; or if the office of the state attorney defers to the department in
writing; or fails to act within a specified period.); see also David J. Federbush, FDUTPA for Civil Antitrust: Additional
Conduct, Party, and Geographic Coverage; State Actions for Consumer Restitution, 76 FLORIDA BAR JOURNAL 52, Dec.
2002 (analyzing the merits of FDUPTA and the potential for deterrence of anticompetitive conduct in Florida), available at
http://www.floridabar.org/divcom/jn/jnjournal01.nsf/c0d731e03de9828d852574580042ae7a/99aa165b7d8ac8a485256c83
00791ec1!OpenDocument&Highlight=0,business,Division* (last visited on Feb, 21, 2021).
30 s. 501.203(2), F.S.
31 s. 501.211, F.S.
32 S. 501.206(1), F.S.
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Civil penalties of up to $10,000 per willful violation.33
Freedom of Speech
The First Amendment of the United States Constitution protects the right to freedom of expression from
government interference. The First Amendment applies to the entire federal government, and the
Supreme Court of the United States (Supreme Court) has interpreted the Due Process Clause of the
Fourteenth Amendment as protecting the rights in the First Amendment from interference by state
governments.34
The most basic component of freedom of expression is the right to freedom of speech. Freedom of
speech may be exercised with words or actions. The Supreme Court requires the government to
provide substantial justification for the interference with the right of free speech where it attempts to
regulate the content of the speech.35 The Supreme Court has recognized that the First Amendment’s
robust speech protections fully apply to online speech.36
Businesses are afforded some of the same First Amendment rights as individuals.37 Generally,
businesses cannot be compelled to host speech with which it disagrees absent a mandate with a
narrowly tailored means of serving a compelling state interest.38 Also, businesses have a right to
unrestricted independent expenditures for political communications and elections as a form of corporate
speech.39
Supremacy Clause
Article VI, Paragraph 2 of the U.S. Constitution is commonly referred to as the Supremacy Clause. It
establishes that the federal constitution, and federal law generally, take precedence over state laws,
and even state constitutions. It prohibits states from interfering with the federal government's exercise
of its constitutional powers, and from assuming any functions that are exclusively entrusted to the
federal government. It does not, however, allow the federal government to review or veto state laws
before they take effect.40
Freedom of Speech and Internet Platforms - Effect of the Bill
The bill provides the following definitions:
Social media platform means any information service, system, Internet search engine, or
access software provider that does business in the state, and provides or enables computer
access by multiple users to a computer server, including an Internet platform and/or a social
media site. The Internet platform or social media site may be a sole proprietorship, partnership,
limited liability company, corporation, association, or other legal entity that is organized or
operated for the profit or financial benefit of its shareholders or other owners, that does
business in the state, and that satisfies at least one of the following thresholds:
o Has annual gross revenues in excess of $100 million, as adjusted in January of each
odd-numbered year to reflect any increase in the Consumer Price Index.
33 Ss. 501.207(1), 501.208, and 501.2075, F.S. Civil Penalties are deposited into general revenue. Enforcing authorities
may also request attorney fees and costs of investigation or litigation. S. 501.2105, F.S.
34 Cornell Law School, Legal Information Institute, First Amendment, https://www.law.cornell.edu/wex/first_amendment
(last visited Feb. 23, 2021); Santa Clara v. Southern Pacific Railroad Co., 118 U.S. 394 (1886).
35 Id.
36 Reno v. ACLU, 521 U.S. 844 (1997); Jason Kelley, Section 230 is Good, Actually, Electronic Frontier Foundation (de. 3,
2020) https://www.eff.org/deeplinks/2020/12/section-230-good-actually (last visited Feb. 25, 2021).
37 Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).
38 Consolidated Edison Co. v. Public Service Commission, 447 U.S. 530 (1980); First National Bank of Boston v. Belliotti,
438 U.S. (1978); Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974); Pacific Gas & Electric Co. v. Public Utilities
Commission of California, 475 U.S. 1 (1986).
39 Citizens United, supra note 38.
40 Cornell Law School, Legal Information Institute, Supremacy Clause,
https://www.law.cornell.edu/wex/supremacy_clause (last visited Feb. 23, 2021).
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o Has at least 100 million monthly individual platform participants globally.
User means a person who resides or is domiciled in the state and who has an account on a
social media platform, regardless of whether the person posts or has posted content or material
to the social media platform.
Algorithm means a mathematical set of rules that specify how a group of data behaves that will
assist in ranking search results and maintaining order or that is used in sorting or ranking
content or material based on relevancy or other factors instead of using published time or
chronological order of such content or material.
Censor includes any action taken by a social media platform to delete, regulate, restrict, edit,
alter, inhibit the publication or republication of, suspend a right to post, remove, or post an
addendum to any content or material posted by a user. This term also includes actions to inhibit
the ability of a user to be viewable by or to interact with another user of the social media
platform.
Deplatform means the action or practice by a social media platform to permanently delete or
ban a user or to temporarily delete or ban a user from the social media platform for more than
60 days.
Post-prioritization means action by a social media platform to place, feature, or prioritize certain
content or material ahead of, below, or in a more or less prominent position than others in a
newsfeed, feed, view, or search results. The term does not include post-prioritization of content
and material based on payments by a third party, including other users, to the social media
platform.
Shadow ban means action by a social media platform, through any means, whether the action
is determined by a natural person or an algorithm, to limit or eliminate the exposure of a user or
content or material posted by a user to other users of the social media platform. This term
includes acts of shadow banning by a social media platform that are not readily apparent to a
user.
Journalistic enterprise means an entity that:
o Publishes in excess of 100,000 words available online with at least 50,000 paid
subscribers or 100,000 monthly active users;
o Publishes 100 hours of audio or video available online with at least 100 million viewers
annually;
o Operates a cable channel that provides more than 40 hours of content per week to more
than 100,000 cable television subscribers; or
o Operates under a broadcast license issued by the Federal Communications
Commission.
The bill requires a social media platform to:
publish the standards, including detailed definitions, it uses or has used for determining how to
censor, deplatform, and shadow ban users, and apply such standards in a consistent manner
among users on the platform.
inform each user about any changes to its user rules, terms, and agreements before
implementing the changes and may not make changes more than once every 30 days.
provide a mechanism that allows a user to request the number of other individual platform
participants who were provided or shown the user's content or posts, and provide that
information upon request.
categorize algorithms used for post-prioritization and shadow banning and provide users with
an annual notice on the use of algorithms for post-prioritization and shadow banning. Users
must be able to opt out of post-prioritization and shadow banning algorithm categories to allow
sequential or chronological posts and content, and this opt-out opportunity must be reoffered
annually.
allow a user who has been deplatformed to access or retrieve all of the user's information,
content, material, and data for at least 60 days after being deplatformed.
The bill prohibits a social media platform from:
censoring a user's content or material or deplatforming a user from the social media platform
in a way that would otherwise violate FDUTPA, or without notifying the user who posted or
attempted to post the content or material. Such notification must:
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o Be in writing;
o Be delivered via electronic mail or direct electronic notification to the user within 30
days of the censoring action;
o Include a thorough rationale explaining the reason that the social media platform
censored the user; and
o Include a precise and thorough explanation of how the social media platform became
aware of the censored content or material, including a thorough explanation of the
algorithms used, if any, to identify or flag the user's content or material as
objectionable.
applying or using post-prioritization or shadow banning algorithms for content and material
posted by or about a user who is known by the social media platform to be a candidate for
office in Florida, beginning from the date of qualification and ending on the date of the election
or the date such candidate for office ceases to be a candidate before the date of election.
Post-prioritization of certain content or material from or about a candidate for office based on
payments to the social media platform by such candidate for office or a third party is not a
violation. Social media platforms must provide users with a method to identify themselves as
qualified candidates, and may confirm such qualification by reviewing the website of the
Division of Elections of the Department of State.
taking any action to censor, deplatform, or shadow ban a journalistic enterprise based on the
content of its publication or broadcast. Post-prioritization of certain journalistic enterprise
content based on payments to the social media platform by such journalistic enterprise is not
a violation.
The bill provides that a social media platform is not required to notify a user of a censoring action if the
censored content or material is obscene, which means content or material that:
the average person, applying contemporary community standards, would find, taken as a whole,
appeals to the prurient interest;
depicts or describes, in a patently offensive way, sexual conduct as specifically defined herein;
and
taken as a whole, lacks serious literary, artistic, political, or scientific value.
If a social media platform fails to comply with any of the foregoing requirements, the bill provides that
the social media platform commits an unfair or deceptive trade act or practice.
If DLA, by its own inquiry or as a result of a complaint, suspects that a violation is imminent, occurring,
or has occurred, DLA may investigate the suspected violation in accordance with FDUTPA. In an
investigation by DLA into alleged violations of this section, DLA’s investigative powers include, but are
not limited to, the ability to subpoena any algorithm used by a social media platform related to any
alleged violation.
A user may bring a private cause of action against a social media platform for failing to:
notify such user of an act of censoring or deplatforming, or
apply censorship, deplatforming, and shadow banning standards in a consistent manner.
The court may award the following damages to the user:
Up to $100,000 in statutory damages per proven claim;
Actual damages;
If aggravating factors are present, punitive damages;
Other forms of equitable relief; and
If the user was deplatformed, costs and reasonable attorney fees.
Each failure to comply with each of the individual requirements in the bill are treated as a separate
violation, act, or practice by the social media platform.
The bill provides that its provisions may only be enforced to the extent they are not inconsistent with
federal law and 47 U.S.C. s. 230(e)(3), and notwithstanding any other provision of state law.
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Antitrust Laws, and State Contracts and Incentives - Current Situation
Antitrust Law
Healthy competition in economic markets keeps prices low and quality high for consumers. When one
entity becomes too strong, it can stifle competition, leading to higher prices and harm to consumers.
Antitrust law exists to protect competition, but not necessarily individual competitors, in economic
markets. It is based on the idea that an unregulated market will lead to the creation of coercive
monopolies.41 Federal antitrust law includes the Sherman Antitrust Act, the Clayton Act, and the
Federal Trade Commission Act. These laws are enforced in federal district court42 by the U.S.
Department of Justice (DOJ), the Federal Trade Commission (FTC), state Attorneys General, and
private plaintiffs. Antitrust case law is well-developed, and it is often difficult to distinguish aggressive,
pro-competitive conduct—which is legal—from predatory, anti-competitive conduct.43
The Clayton Act44 prohibits specific business actions, including mergers and acquisitions, which may
substantially lessen competition. To determine whether a merger violates the Clayton Act, a court must
decide whether the merger is likely to create an appreciable danger of anticompetitive effects. The
plaintiff must establish a prima facie case that a transaction is anticompetitive, such as by showing that
an acquisition will significantly increase market concentration and lessen competition.45 The burden
then shifts to the defendant to rebut the prima facie case, such as by introducing evidence casting
doubt on the plaintiff's prediction of anticompetitive effects.46 If the defendant rebuts the prima facie
case, the plaintiff has the final burden to demonstrate an antitrust violation.47 If the plaintiff prevails, the
customary remedy is for the court to order divestiture and unwind the merger.48
The Sherman Antitrust Act49 prohibits any attempt to restrain trade or form a monopoly. A monopoly
has two elements: (1) monopoly power and (2) willful acquisition or maintenance of that power, as
opposed to power naturally resulting from a superior product, acumen, or historic accident. Stated
differently, a plaintiff must prove the defendant acquired the monopoly power in a "predatory" manner.
Penalties for violating the Sherman Act include up to ten years’ imprisonment and a fine up to $100
million for a corporation or $1 million for any other person.50
The Florida Antitrust Act of 198051 is intended to complement federal antitrust law in order to foster
effective competition. Implemented by the Office of the Attorney General (OAG), the Act essentially
mirrors the federal Sherman Act, and prohibits:52
Every contract, combination, or conspiracy in restraint of trade or commerce;53 and
Monopolization or attempted monopolization of any part of trade or commerce.54
41 John J. Miles, Antitrust Primer, 20140513 AHLA Seminar Papers 1 (2014) (stating the purpose of antitrust law is to
"protect and promote competition as the primary method by which this country allocates scarce resources to maximize the
welfare of consumers.").
42 Steven Fox, Litigation Under Florida's Deceptive and Unfair Trade Practices Act, the Florida Antitrust Act, or Federal
Antitrust Statutes, The Florida Bar, Business Litigation in Florida (2017) (federal district courts have exclusive jurisdiction
over federal antitrust actions).
43 Animesh Ballabh, Antitrust Law: An Overview, 88 J. Pat. & Trademark Off. Soc'y 877 (2006); John J. Miles, Antitrust
Primer, 20140513 AHLA Seminar Papers 1 (2014).
44 15 U.S.C. s. 18.
45 Olin Corp. v. FTC, 986 F.2d 1295, 1305 (9th Cir. 1993) (discussing how plaintiff’s establishment of a prima facie case
on statistical evidence is first step in analysis); Chicago Bridge & Iron Co. v. FTC, 534 F.3d 410, 423 (5th Cir. 2008).
46 Id.
47 Chicago Bridge & Iron, 534 F.3d at 423.
48 St. Alphonsus Med. Ctr. v. St. Luke's Health Sys., 778 F.3d 775, 792 (9th Cir. 2015).
49 15 U.S.C. ss. 1 et seq.
50 15 U.S.C. s. 1.
51 Ss. 542.15 – 542.36, F.S.
52 S. 542.16, F.S.
53 S. 542.18, F.S.
54 S. 542.19, F.S.
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A violation of Florida antitrust law can be penalized with up to three years' imprisonment and fines up to
$1 million for a corporation and $100,000 for any other person.55 There is also a private right of action
for any person injured by certain violations.56
Florida law does not provide a corollary to the federal Clayton Act, which specifically targets mergers
and acquisitions that may lessen competition. However, the Attorney General considers the Florida
Antitrust Act of 1980 and the FDUTPA broad enough to encompass those types of violations.57
Antitrust Actions Against Internet Platforms
Critics have argued for years that internet platforms like Google, Apple, Facebook and Amazon
improperly built empires over commerce, communications and culture, and then abused their power.
Recently, federal and state regulators investigated and brought antitrust cases against them.58 For
example, the FTC and over 40 states, including Florida, have brought an action against Facebook for
allegedly buying smaller rivals to maintain market dominance.59 Also, DOJ and 11 states, including
Florida, have brought an action against Google for allegedly manipulating search engine results.60
Procurement of Commodities and Services
Chapter 287, F.S., regulates state agency61 procurement of personal property and services. Depending
on the cost and characteristics of the needed goods or services, agencies may utilize a variety of
procurement methods that include:
Single source contracts, which are used when an agency determines that only one vendor is
available to provide a commodity or service at the time of purchase;
Invitations to bid, which are used when an agency determines that standard services or goods
will meet needs, wide competition is available, and the vendor’s experience will not greatly
influence the agency’s results;
Requests for proposals, which are used when the procurement requirements allow for
consideration of various solutions and the agency believes more than two or three vendors exist
who can provide the required goods or services; and
Invitations to negotiate, which are used when negotiations are determined to be necessary to
obtain the best value and involve a request for highly complex, customized, mission-critical
services. 62
For contracts for commodities or services in excess of $35,000, agencies must utilize a competitive
solicitation process.63 However, specified contractual services and commodities are not subject to
competitive solicitation requirements.64
The Department of Management Services (DMS) is statutorily designated as the central executive
agency procurement authority and its responsibilities include overseeing agency implementation of the
55 S. 542.21, F.S.
56 Ss. 542.21, 542.22, F.S.
57 Florida Attorney General, Antitrust, http://myfloridalegal.com/antitrust (last visited Feb 23, 2021).
58 David McCabe, Cecilia Kang, and Daisuke Wakabayashi, Google’s Legal Peril Grows in Face of Third Antitrust Suit,
New York Times (Dec. 17, 2020), https://www.nytimes.com/2020/12/17/technology/google-antitrust-monopoly.html (last
visited Feb. 25, 2021).
59 Id; Federal Trade Commission v. Facebook, Inc., No. 1:20-cv-03590 (D.C. Cir. 2020).
60 McCabe, supra note 59; United States Department of Justice v. Google LLC, No. 1:20-cv-03010 (D.C. Cir. 2020).
61 Section 287.012(1), F.S., defines the term “agency” as any of the various state officers, departments, boards,
commissions, divisions, bureaus, and councils and any other unit of organization, however designated, of the executive
branch of state government. “Agency” does not include the university and college boards of trustees or the state
universities and colleges.
62 See ss. 287.012(6) and 287.057(1), F.S.
63 Section 287.057(1), F.S., requires all projects that exceed the Category Two threshold amount ($35,000) contained in s.
287.017, F.S., to be competitively procured.
64 See s. 287.057(3)(e), F.S.
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procurement process,65 creating uniform agency procurement rules,66 implementing the online
procurement program,67 and establishing state term contracts.68 The agency procurement process is
partly decentralized in that agencies, except in the case of state term contracts, may procure goods
and services themselves in accordance with requirements set forth in statute and rule, rather than
placing orders through DMS.
Certain persons and their affiliates are prohibited from contracting with public entities for services and
goods, with certain exceptions, if they have been identified by DMS as violating certain restrictions and
have been placed on one of the following lists:69
Convicted Vendor List,
Discriminatory Vendor List,
Scrutinized Companies with Activities in Sudan List,
Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, and
Scrutinized Companies that Boycott Israel List.
Economic Incentives
The Department of Economic Opportunity (DEO) advances Florida’s economy by championing the
state’s economic development vision and by administering state and federal programs and initiatives to
help visitors, citizens, businesses, and communities.70
Enterprise Florida, Inc. (EFI) is a nonprofit corporation established by the Legislature to serve as the
state’s main economic development organization.71 EFI is required to enter into a performance-based
contract with DEO.72
EFI works with businesses and economic development partners to determine whether projects are
eligible for state economic development incentives. A project must be vetted by EFI and EFI must
determine that incentives are necessary to secure a deal in order for an incentive package to be
developed and sent to DEO for further review. Once the incentive package is finalized, DEO and other
appropriate state bodies issue formal approvals.
Florida has a number of incentive programs intended to promote economic development in the state.
These programs come in a variety of forms including tax refunds, tax credits, tax exemptions, and cash
grants under chapter 288, Florida Statutes.
Businesses interested in expanding or relocating in Florida learn about the state’s economic incentive
programs through several channels, including EFI, state and local economic development
organizations, and private site selection consultants. Businesses can apply for more than one incentive
to support their expansion or relocation projects.73
Once a company begins the application process, EFI notifies the division so that it may begin the formal
due diligence process to determine the business’s statutory eligibility and financial standing. When due
diligence and the application are complete, EFI determines what incentives and associated amounts
may be available to the applicant and makes an approval or disapproval recommendation to DEO’s
65 See ss. 287.032 and 287.042, F.S.
66 See ss. 287.032(2) and 287.042(3), (4), and (12), F.S.
67 See s. 287.057(23), F.S.
68 See ss. 287.042(2), 287.056, and 287.1345, F.S.
69 Ss. 287.133-135, F.S.
70 S. 20.60(4)(b)(f), F.S.; Florida Department of Economic Opportunity, About Us, https://floridajobs.org/about-us (last
visited Feb. 22, 2021).
71 S. 288.901, F.S. Chapter 92-277, Laws of Fla., created EFI, while ch. 96-320, Laws of Fla, established EFI as a public-
private partnership.
72 Section. 20.60(1), F.S., requires DEO to “establish annual performance standards for Enterprise Florida, Inc.,
CareerSource Florida, Inc., the Florida Tourism Industry Marketing Corporation, and Space Florida and report annually on
how these performance measures are being met”.
73 OPPAGA, Report No. 16-09, p. 50-51.
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executive director. If the business is approved, DEO will develop a contract or agreement with the
applicant that specifies the total incentive amount, performance conditions that must be met to receive
payment, payment schedule, and sanctions for failure to meet performance conditions.74
Antitrust Laws, and State Contracts and Incentives - Effect of the Bill
The bill provides the following definitions:
Person means a natural person or an entity organized under the laws of any state or of the
United States who operates as a social media platform, with the legal power to enter into a
binding contract and which bids or applies to bid on contracts let by a public entity, or which
otherwise transacts or applies to transact business with a public entity. The term includes those
officers, directors, executives, partners, shareholders, employees, members, and agents who
are active in management of an entity.
Affiliate means either
o a predecessor or successor of a person convicted of or held civilly liable for an antitrust
violation; or
o an entity under the control of any natural person who is active in the management of the
entity and who has been convicted of or held civilly liable for an antitrust violation. The
term includes those officers, directors, executives, partners, shareholders, employees,
members, and agents who are active in the management of an affiliate. The term also
includes a person who knowingly enters into a joint venture with a person who has
violated an antitrust law during the preceding 36 months.
Antitrust violation means any state or federal antitrust law as determined in a civil or criminal
proceeding brought by the Attorney General, a state attorney, a similar body or agency of
another state, the Federal Trade Commission, or the United States Department of Justice.
Convicted or held civilly liable means a criminal finding of guilt or conviction, with or without an
adjudication of guilt, being held civilly liable, or having a judgment levied for an antitrust
violation, in any federal or state trial court of record relating to charges brought by indictment,
information, or complaint on or after July 1, 2021, as a result of a jury verdict, nonjury trial, or
entry of a plea of guilty or nolo contendere or other order finding liability.
Public entity means the state and any of its departments or agencies.
Antitrust Violator Vendor List
If a person has been convicted of or has been held civilly liable for antitrust violations, the bill allows
DMS to place such person, or an affiliate of such person, on the Antitrust Violator Vendor List (list).
If a person or an affiliate is placed on the list, such person or affiliate may not:
submit a bid, proposal, or reply for any new contract to provide any goods or services to a public
entity;
submit a bid, proposal, or reply for a new contract with a public entity for the construction or
repair of a public building or public work;
submit a bid, proposal, or reply on new leases of real property to a public entity;
be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a new
contract with a public entity; or
transact new business with a public entity.
The bill prohibits a public entity from accepting a bid, proposal, or reply from, awarding a new contract
to, or transacting new business with any person or affiliate on the list unless that person or affiliate has
been removed from the list. This prohibition does not apply to contracts that were awarded or business
transactions that began before a person or an affiliate was placed on the list, and in no event before
July 1, 2021.
DMS must maintain the list with the names and addresses of the people or affiliates who have been
disqualified from the public contracting and purchasing process. DMS must publish the initial antitrust
74 Id.
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violator vendor list on January 1, 2022, and publish an updated version of the list quarterly thereafter.
The revised quarterly list must be electronically posted. A person or affiliate on the list is disqualified as
of the date the final order placing them on the list is entered.
DMS must investigate receipt of reasonable information from any source that a person was convicted
or held civilly liable for antitrust violations, and determine whether good cause exists to place that
person or an affiliate of that person on the list. If good cause exists, DMS must notify the person or
affiliate in writing of its intent to place the name of that person or affiliate on the list, and of the person's
or affiliate's right to a hearing, the procedure that must be followed, and the applicable time
requirements. If the person or affiliate does not request a hearing, DMS must enter a final order placing
the name of the person or affiliate on the list. A person or affiliate may not be placed on the list without
receiving an individual notice of intent from DMS.
The bill allows a person or affiliate to dispute placement on the list. After receipt of the notice of intent,
the person or affiliate may file a petition for a formal hearing under the Administrative Procedures Act to
determine whether it is in the public interest for the person or affiliate to be placed on the list. In a
formal hearing, DMS must prove that it is in the public interest for the person or affiliate to be placed on
the list. Proof that a person was convicted or was held civilly liable for antitrust violations, or that an
entity is an affiliate of such a person constitutes a prima facie case that it is in the public interest for the
person or affiliate to be put on the list. Status as an affiliate must be proven by clear and convincing
evidence. The ownership by one person of shares constituting a controlling interest in another person,
or a pooling of equipment or income among persons when not for fair market value under an arm's
length agreement, is a prima facie case that one person controls another person.
In determining whether it is in the public interest to place a person or affiliate on the list, the bill
indicates that the administrative law judge must consider the following factors:
Whether the person or affiliate committed an antitrust violation.
The nature and details of the antitrust violation.
The degree of culpability of the person or affiliate proposed to be placed on the antitrust violator
vendor list.
Reinstatement or clemency in any jurisdiction in relation to the antitrust violation at issue in the
proceeding.
The needs of public entities for additional competition in the procurement of goods and services
in their respective markets.
Upon establishment of a prima facie case that it is in the public interest for the person or affiliate to
whom DMS has given notice to be put on the list, the person or affiliate may prove by a preponderance
of the evidence that it would not be in the public interest to put them on the list, based upon evidence
addressing the factors above.
Temporary List Placement Procedure
The bill allows any person charged or accused of any state or federal antitrust law in a civil or criminal
proceeding brought by the OAG, a state attorney, the Federal Trade Commission, or the United States
Department of Justice on or after July 1, 2021, to be placed on the list temporarily by the OAG. The
OAG may make a finding of probable cause that a person has likely violated the underlying antitrust
laws, and temporarily place such person on the antitrust violator vendor list until such proceeding has
concluded. Affiliates may not be placed on the list under this temporary procedure.
If probable cause exists, the OAG must notify the person in writing of its intent to temporarily place the
name of that person on the antitrust violator vendor list, and of the person's right to a hearing, the
procedure that must be followed, and the applicable time requirements. If the person does not request
a hearing, the OAG must enter a final order temporarily placing the name of the person on the antitrust
violator vendor list. A person may not be placed on the antitrust violator vendor list without receiving an
individual notice of intent from the Attorney General.
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After receipt of the notice of intent, the person may file a petition for a formal hearing under the
Administrative Procedures Act to determine whether it is in the public interest for the person to be
temporarily placed on the antitrust violator vendor list.
In determining whether it is in the public interest to temporarily place a person on the antitrust violator
vendor, the administrative law judge must consider the following factors:
The likelihood the person committed the antitrust violation.
The nature and details of the antitrust violation.
The degree of culpability of the person proposed to be placed on the list.
The needs of public entities for additional competition in the procurement of goods and services
in their respective markets.
Removal from the List
The bills allows a person or affiliate to petition for removal from the Antitrust Violator Vendor List no
sooner than 6 months after the date a final order is entered. If the petition is based upon a reversal of
the conviction or liability on appellate review or pardon, then they may petition at any time. The petition
must be filed with DMS. A person or affiliate may be removed from the list subject to such terms and
conditions as prescribed by the administrative law judge upon a determination that removal is in the
public interest. In determining whether removal would be in the public interest, the administrative law
judge must consider any relevant factors.
Upon proof that a person was found not guilty or not civilly liable, the antitrust violation case was
dismissed, the court entered a finding in the person's favor, the person's conviction or determination of
liability has been reversed on appeal, or that the person has been pardoned, the administrative law
judge must determine that removal of the person or an affiliate from the list is in the public interest.
If the petition for removal is denied, the person or affiliate may not petition for another hearing on
removal for a period of 9 months after the date of denial, unless the petition is based upon a reversal of
the conviction on appellate review or a pardon. DMS may petition for removal before the expiration of
such period if it determines that removal would be in the public interest.
Economic Incentives and Exceptions
The bill excludes a person or entity who has been placed on the Antitrust Violator Vendor List from
being a qualified applicant for economic incentives, and such person or entity is not qualified to receive
such economic incentives. Economic incentives means state grants, cash grants, tax exemptions, tax
refunds, tax credits, state funds, and other state incentives under chapter 288 or administered by
Enterprise Florida, Inc.
The placement on the list does not affect any rights or obligations under any contract, franchise, or
other binding agreement which predates such placement on the list.
This exclusion does not apply to any activities regulated by the Public Service Commission or to the
purchase of goods or services made by any public entity from the Department of Corrections, from the
nonprofit corporation organized to operate correctional work programs, or from any accredited nonprofit
workshop designed to assist blind and other severely handicapped individuals to achieve maximum
personal independence.
These limitations may only be enforced to the extent not inconsistent with federal law, and
notwithstanding any other provision of state law.
Candidates for Office and In-kind Contributions – Current Situation
Violations of Florida Election Law
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The Division of Elections (division) under the Florida Department of State ensures compliance with
election laws, provides statewide coordination of election administration, and promotes public
participation in the electoral process. The division consists of three bureaus - the Bureau of Election
Records, the Bureau of Voter Registration Services, and the Bureau of Voting Systems Certification.75
The Florida Elections Commission (commission) has the sole civil jurisdiction to investigate and
determine violations of the portion of the Florida Election Code in Chapters 104 and 106, Florida
Statutes, but only after receiving either a legally sufficient sworn complaint or information from the
division. The commission is composed of nine members appointed by the Governor.76
The commission determines probable cause based on the investigator’s report, the recommendation of
counsel for the commission, the complaint, and staff recommendations, as well as any written
statements submitted by the respondent and any oral statements made at the hearing.77 If probable
cause has been found by the commission, a respondent may agree to a consent order, elect to have a
formal administrative hearing conducted by an administrative law judge in the Division of Administrative
Hearings, or to elect to have a formal or informal hearing conducted before the commission.78
In order to carry out its responsibilities, the commission may subpoena any person in the state, doing
business in the state, or who has filed or is required to have filed any application, document, papers, or
other information with an office or agency of this state or a political subdivision thereof, and require the
production of any papers, books, or other records relevant to any investigation, including the records
and accounts of any bank or trust company doing business in this state.79
Civil penalties are generally limited to not more than $1,000 per count or violation.80 Other penalties
include permanent or temporary injunctions, and restraining orders.81 Any civil penalty or fine assessed
is deposited into the General Revenue Fund.82
Actions for violation of chapters 104 and 106, Florida Statutes, must be commenced before 2 years
have elapsed from the date of the violation.83
In-kind Contributions to Candidates
A candidate means a person who does any of the following:84
seeks to qualify for nomination or election by means of the petitioning process.
seeks to qualify for election as a write-in candidate.
receives contributions or makes expenditures, or consents for any other person to receive
contributions or make expenditures, with a view to bring about his or her nomination or
election to, or retention in, public office.
appoints a treasurer and designates a primary depository.
files qualification papers and subscribes to a candidate’s oath as required by law.
Generally, a political committee means a combination of two or more individuals, or a person other than
an individual, that, in an aggregate amount in excess of $500 during a single calendar year:
accepts contributions for the purpose of making contributions to any candidate, political
committee, affiliated party committee, or political party;
75 Florida Department of State, Division of Elections, About Us, https://dos.myflorida.com/elections/about-us/ (last visited
Feb. 21, 2021).
76 S. 106.25(1), F.S.
77 S. 106.25(4), F.S.
78 S. 106.25(5), F.S.
79 S. 106.26(1), F.S.
80 S. 106.265(1), F.S.
81 S. 106.27, F.S.
82 S. 106.265(4), (5), F.S.
83 S. 106.28, F.S.
84 S. 106.011(3), F.S.
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accepts contributions for the purpose of expressly advocating the election or defeat of a
candidate or the passage or defeat of an issue;
makes expenditures that expressly advocate the election or defeat of a candidate or the
passage or defeat of an issue; or
makes contributions to a common fund, other than a joint checking account between
spouses, from which contributions are made to any candidate, political committee, affiliated
party committee, or political party.
Candidates and political committees must report all contributions, loans, expenditures, distributions,
and transfers, regardless of the amount.85 They must report the full name and address of each person
making the contribution or receiving the expenditure and, for contributions over $100, the occupation.86
An in-kind contribution87 is anything of value except money made for the purpose of influencing the
results of an election.88 The valuation of an in-kind contribution is fair market value, and in-kind
contributions are subject to the same contribution limitations as money.89
Candidates for Office and In-kind Contributions – Effect of the Bill
The bill provides that a social media platform may not knowingly deplatform a candidate. If the
commission finds that a social media platform has violated this provision, the social media platform may
be fined $100,000 per day for deplatforming a statewide candidate, and $10,000 per day for
deplatforming all other candidates.
The bill provides that if a social media platform provides free advertisement to a candidate, it must be
reported as an in-kind contribution to the candidate. Free advertising does not include posts, content,
material, and comments made on the social media platform that are shown in the same or similar way
as those from other users.
The bill provides the following definitions for this provision:
Candidate means a person who files qualification papers and subscribes to a candidate’s oath
as required by law.
Deplatform and Social media platform have the same meaning as in the new provision
addressing censorship.
The bill provides that this provision may only be enforced to the extent not inconsistent with federal law
and 47 U.S.C. s. 230(e)(3), and notwithstanding any other provision of state law.
The bill has an effective date of July 1, 2021.
B. SECTION DIRECTORY:
Section 1: Provides requirements for candidates and social media platforms related to content
restrictions and campaign contributions for candidates.
Section 2: Creates restrictions for contracting with public entities for certain social media platforms
who have violated antitrust laws.
Section 3: Creates requirements for social media platforms for how and when they can restrict user
content.
Section 4: Provides a cross-reference.
Section 5: Provides an effective date.
85 Ss. 106.011(5) and 106.07(1), F.S.
86 S. 106.07(4)(a), F.S.
87 Examples of in-kind contributions include food provided for a fundraiser free of charge, donated tickets to an event, and
certain kinds of free advertisement. DE 04-06 Fla. Op. Dept. of State, Div. of Elections (2004).
https://opinions.dos.state.fl.us/searchable/pdf/2004/de0406.pdf.
88 Florida Department of State, Division of Elections, Campaign Finance, https://dos.myflorida.com/elections/candidates-
committees/campaign-finance/ (last visited Feb. 21, 2021).
89 Ss. 106.011(5) and 106.055, F.S.
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II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
The bill may increase revenues in the state related to fines or civil penalties collected related to
violations of the bill’s provisions. The estimated impact is indeterminate.
2. Expenditures:
The bill may increase expenditures based on costs to implement the bill, including costs to
investigate and prosecute violations of the bill provisions. The estimated impact is indeterminate.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill will require social media platforms to implement systems in conformance with the bill that will
help protect Florida consumers and businesses online.
D. FISCAL COMMENTS:
None.
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. This bill does not appear to require counties or municipalities to take action requiring
the expenditure of funds, reduce the authority that counties or municipalities have to raise revenue in
the aggregate, nor reduce the percentage of state tax shared with counties or municipalities.
2. Other:
Jurisdiction
For a court to exercise jurisdiction over a respondent, it must have subject matter jurisdiction and
personal jurisdiction. State courts have general jurisdiction, and therefore a claim made under a state
statute meets the subject matter jurisdiction requirement.90 Personal jurisdiction is a constitutional
requirement that a respondent have minimum contacts with the state in which the court sits so that
the court may exercise power over the respondent.91 A non-resident respondent may have sufficient
contacts with Florida if he or she commits acts expressly enumerated in Florida’s long-arm statute.92
Alternately, the non-resident respondent may be subject to a Florida court’s personal jurisdiction
because he or she has minimum contacts with the state that are otherwise unrelated to matter that
brings him or her into court.93 Examples of sufficient minimum contacts include frequent business
travel to the state, owning a company with a Florida office branch, or subjecting oneself to the court’s
90 Caiazzo v. American Royal Arts Corp., 73 So. 3d 245, 250 (Fla. 4th DCA 2011).
91 Id.
92 Id; § 48.193, F.S.
93 Caiazzo v. American Royal Arts Corp., 73 So. 3d 245, 250 (Fla. 4th DCA 2011).
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jurisdiction by presenting oneself in the Florida court.94 These jurisdictional requirements ensure that
a respondent has sufficient notice and due process afforded to him or her under the U.S.
Constitution before his or her rights are subjected to the court.95
Whether a non-resident internet or social media platform has sufficient minimum contacts with the
state is a fact-specific question that would likely need to be addressed on a case-by-case basis by a
court.96
Freedom of Speech
Businesses are afforded some of the same First Amendment rights as individuals.97 Generally,
businesses cannot be compelled to host speech with which it disagrees absent a mandate that has
been narrowly tailored to serve a compelling state interest.98 Some of the provisions of the bill may
implicate First Amendment protections regarding speech by a business.
Also, businesses have a right to unrestricted independent expenditures for political communications
and elections as a form of corporate speech.99 Some of the provisions of the bill may implicate First
Amendment protections related to political speech by a business.
Content-neutral regulations are legitimate if they advance important governmental interests that are
not related to suppression of free speech, and do not substantially burden more speech than
necessary to further those interests.100 However, a law may be determined to be overbroad if a
“substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly
legitimate sweep.”101
Supremacy Clause
Article VI, Paragraph 2 of the U.S. Constitution is commonly referred to as the Supremacy Clause. It
establishes that the federal constitution, and federal law generally, take precedence over state laws,
and even state constitutions. It prohibits states from interfering with the federal government's
exercise of its constitutional powers, and from assuming any functions that are exclusively entrusted
to the federal government. It does not, however, allow the federal government to review or veto state
laws before they take effect.102 The bill may implicate the Supremacy Clause by attempting to
regulate in an area that may be preempted by federal law.103
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
94 Id.
95 Id. at 250-251.
96 See Caiazzo v. American Royal Arts Corp., 73 So. 3d 245, (Fla. 4th DCA 2011); Zippo Mfg. Co. v. Zippo Dot Com, Inc.,
952 F. Supp. 1119, 1124 (W.D. Pa. 1997).
97 Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).
98 Consolidated Edison Co. v. Public Service Commission, 447 U.S. 530 (1980); First National Bank of Boston v. Belliotti,
438 U.S. (1978); Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974); Pacific Gas & Electric Co. v. Public Utilities
Commission of California, 475 U.S. 1 (1986).
99 Citizens United, supra note 38.
100 Turner Broadcasting System, Inc. v. F.C.C., 520 U.S. 180,189 (U.S. 1997).
101 U.S. v. Stevens, 559 U.S. 460 (2010), quoting, Washington State Grange v. Washington State Republican Party, 552
U.S. 442, 449, n. 6, (2008).
102 Cornell Law School, Legal Information Institute, Supremacy Clause,
https://www.law.cornell.edu/wex/supremacy_clause (last visited Feb. 23, 2021).
103 47 U.S.C. § 203(e).
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IV. AMENDMENTS/ COMMITTEE SUBSTITUTE CHANGES
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