This week, a Clinton-appointed federal judge blocked a Florida law which aimed to both protect free speech online and prevent “a social media platform from willfully deplatforming a candidate.”
Governor Ron DeSantis has reportedly vowed to appeal the ruling, indicating that this battle in the broader war over the intersection of legislation and technology is far from over.
Here’s everything you need to know about DeSantis’ law, and why it was struck down.
What did the law aim to achieve?
DeSantis signed the legislation in late May, aiming to rein in Big Tech companies and empower users who believed they had been discriminated against unfairly.
According to DeSantis, under SB 7072:
- All Floridians treated unfairly by Big Tech platforms will have the right to sue companies that violate this law — and win monetary damages. This reform safeguards the rights of every Floridian by requiring social media companies to be transparent about their content moderation practices and give users proper notice of changes to those policies, which prevents Big Tech bureaucrats from “moving the goalposts” to silence viewpoints they don’t like.
- The Attorney General of Florida can bring action against technology companies that violate this law, under Florida’s Unfair and Deceptive Trade Practices Act. If social media platforms are found to have violated antitrust law, they will be restricted from contracting with any public entity. That “antitrust violator” blacklist imposes real consequences for Big Tech oligopolies’ bottom line.
- Big Tech is prohibited from de-platforming Floridian political candidates. The Florida Election Commission will impose fines of $250,000 per day on any social media company that de-platforms any candidate for statewide office, and $25,000 per day for de-platforming candidates for non-statewide offices. Any Floridian can block any candidate they don’t want to hear from, and that is a right that belongs to each citizen — it’s not for Big Tech companies to decide.
“This session, we took action to ensure that ‘We the People’ — real Floridians across the Sunshine State — are guaranteed protection against the Silicon Valley elites,” said Governor Ron DeSantis. “Many in our state have experienced censorship and other tyrannical behavior firsthand in Cuba and Venezuela. If Big Tech censors enforce rules inconsistently, to discriminate in favor of the dominant Silicon Valley ideology, they will now be held accountable.”
The two important takeaways which make this legislative effort unique in the context of Big Tech are as follows:
- The ability for users to take legal action against Big Tech platforms would represent a pivotal change in our current system, where companies enjoy almost complete projection from legal consequences under Section 230 of the Communications Decency Act.
- The explicit prohibition of the de-platforming of political candidates draws a clear line in the sand in terms of the political influence Big Tech companies can have during elections.
Why did the judge block the law?
U.S. District Judge Robert Hinkle argued in his injunction that preventing Big Tech companies from “deplatforming” likely violated the First Amendment rights of these platforms.
“The legislation compels providers to host speech that violates their standards — speech they otherwise would not host — and forbids providers from speaking as they otherwise would,” he wrote.
“Like prior First Amendment restrictions, this is an instance of burning the house to roast a pig. … Balancing the exchange of ideas among private speakers is not a legitimate governmental interest. And even aside from the actual motivation for this legislation, it is plainly content-based and subject to strict scrutiny,” Hinkle added sarcastically, according to NBC News.
Why does this matter?
This specific debate is important because it represents the core of the ideological position DeSantis is presenting when it comes to the legislation of Big Tech.
While Congress is focusing on issues such as antitrust law and the “creation” of competition in addition to the First Amendment concerns relating to Big Tech, DeSantis’ strategy is to focus on Big Tech’s impact on freedom of speech — an issue of massive importance for many conservatives — with state-level direction action that both takes national policy efforts into account and amplifies them, using the specific tools he has as a state governor.
Given that DeSantis plans to challenge the injunction, it then becomes important to understand that other legal minds have spoken out on this strategy. Clarence Thomas, for example, “appeared to argue that social media companies like Facebook and Twitter should no longer be able to hide behind protections like the First Amendment and Section 230 in their bid to regulate certain forms of speech on their platforms” in April.
Thomas hinted at two fundamental arguments that could be crucial elements of the legislative strategy for hindering Big Tech’s efforts to suppress conservative speech online.
Firstly, the argument that companies like Twitter are “public accommodations” would provide legislators with effective tools to regulate their control of content — for better or for worse.
Secondly, the explicit judicial acknowledgement that Section 230 is being leveraged by social media companies to provide “immunity” for their “bad-faith” removal of third-party content provides a further indication that the alteration of Section 230 is a possibility in the near future.
DeSantis’ legislative efforts are squarely in line with this very same viewpoint.
Ian Haworth is an Editor and Writer for The Daily Wire. Follow him on Twitter at @ighaworth.
The views expressed in this piece are the author’s own and do not necessarily represent those of The Daily Wire.