The ‘Big Tech’ bill that the Florida legislature has been working on for the last few days seems to be both a bad idea and constitutionally suspect.
It has yet to be synthesized by the House and Senate before it heads to the governor’s desk, but, in its current form at least, the “Big Tech” bill that the Florida legislature has been working on for the last few days seems to be both a bad idea and constitutionally suspect. I have been a fan of most of the measures that Governor DeSantis has driven forward here in Florida over the last two years, but I’m afraid that this one is a bust.
As it exists, the bill aims to do a number of things: (1) to prevent social-media companies from fully de-platforming candidates for public office; (2) to force social-media companies to publish the rules that govern their content and user moderation, to apply those rules consistently, and to provide users with full explanations as to how they have been deployed; (3) to prevent social-media companies from kicking off most users without a period of advanced notice, and/or to require that those users be given a chance to “correct” posts that have violated the terms of service to which they agreed; and (4) to prevent social-media companies from electing to “censor, deplatform, or shadow ban” any “journalistic enterprise based on the content of its publication or broadcast.”
These proposal are being sold both as traditional “consumer protection” regulations and as a concerted defense of the First Amendment. “What this bill does,” Representative John Snyder claims, “is send a loud message that the Constitution does not have an asterisk that says only certain speech is free and protected.” But the job of the First Amendment in this area is to limit government, not private enterprise, which means that, insofar as the Constitution applies here at all, it applies the other way around.
It is plausible that requiring social-media companies to publish their rules will pass constitutional muster. But interfering with how those rules are adjudicated will likely not, and nor will depriving platforms of the power to interact however they see fit with outlets that produce journalism. Yes, Twitter, Facebook, and Google are precisely the hives of hypocrisy and inconsistency that their critics say they are. But, under present American law, those companies are allowed to be hives of hypocrisy and inconsistency — not only as a result of statutes such as Section 230, but as a result of the plain text of the First Amendment itself. To force private entities to host or disseminate speech that they abhor is, ultimately, to force them to violate their conscience. It’s illegal in America — and it should be. (And when it’s apparently not, as in the case of Jack Phillips, conservatives are rightly outraged.)
The part of the law that applies to politicians is a little less straightforward. On the one hand the Supreme Court held in Miami Herald Publishing Co. v. Tornillo, that newspapers cannot be obliged to publish replies from political candidates who have been criticized in print because such an obligation “exacts a penalty on the basis of the content.” That being so, one might reasonably assume that the same rule applies to Twitter. And yet, as Scott Shackford points out over at Reason, in a piece that quotes the First Amendment scholar Eugene Volokh, the Supreme Court also has a history of upholding state laws that require private business not “to host particular messages, but rather serve as a carrier of a type of communication.” In “a 1980 decision, Pruneyard Shopping Center v. Robins,” Shackford relates, “the Supreme Court ruled that California could mandate that Pruneyard allow protesters to engage in political advocacy there, even though it was private property.” Because “DeSantis is proposing forcing tech platforms to host candidates regardless of their positions or parties,” then he “is attempting to force these platforms to serve as carriers of messages without policing the content, much like phone companies can’t control the speech of their customers.” That, Shackford notes, might render the provision constitutional — akin in nature to the FCC rules that oblige American television stations to run advertisements from political candidates even if they object to the content — although it would still run into serious problems with Section 230.
Its legality aside, the bill is a mess. The latest version of the text contains an exemption for “any information service, system, Internet search engine, or access software provider operated by a company that owns and operates a theme park or entertainment complex” — as obvious a sop to Disney as has ever come out of the Florida legislature. I’m told that this was put in at the last minute as not to hamper the company’s potential ability to moderate comments on its streaming service, Disney+. But, if true, that raises an important question. Namely: Why is it acceptable for Disney to ‘censor’ its commenters, but not for Twitter to?
As for enforcement, one can only presume that it would prove an absolute nightmare. We are talking here, remember, about a single state attempting to regulate an industry that is as intrinsically national in nature as it is possible to get. Does Florida expect that the whole cabal of California-based companies is going to change their rules for everyone in response? Or does it hope to yield a two-tier system in which Floridians are treated differently from users in every other state — or, perhaps, in which they are essentially using a different set of services? In making the case for federalism, I typically argue that almost every political question in America would be better resolved at the state level than at the national level. This is one of those rare issues that is not.
What should Florida do? I don’t know. I don’t know what Washington, D.C., should do, either. Critics of tech regulation such as myself are often told that we have “no solutions,” and, in this case, that charge is true. I am not entirely sanguine about the way that our big technological firms operate, but I am not sure what to do about it, either — at least, not without guaranteeing an endless round of political and legal fights that may not have the long-term consequences that conservatives are hoping for. It seems pretty clear that, even if the more controversial provisions within this law were to be upheld, it will still get immediately bogged down in court, as corporations based in other places try to grapple with its details and to resist its expensive punishments. One does not have to be a fan of Twitter or Google to think that there are better things for the government of Florida — and for Governor DeSantis — to be doing with their limited time.