A federal judge chosen by Clinton this week struck down a Florida statute that sought to safeguard free speech online while also prohibiting “a social media platform from knowingly deplatforming a candidate.”
Reportedly, Governor Ron DeSantis vowed to appeal the ruling, indicating that the battle over the intersection of law and technology is far from done.
Everything you need to know about DeSantis’ law is here, including why it was overturned.
What was the goal of the law anyway?
In late May, DeSantis approved legislation aimed at reining in Big Tech companies and empowering users who felt they had been unfairly discriminated against.
Under SB 7072, according to DeSantis:
- 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.
Governor Ron DeSantis stated, “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, 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 following are the two key points that distinguish this legislative endeavor in the context of Big Tech:
- 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?
In his injunction, U.S. District Judge Robert Hinkle argued that banning Big Tech corporations from “deplatforming” certainly violated these platforms’ First Amendment rights.
“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,” Hinkle wrote.
According to NBC News, Hinkle added sarcastically, “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.”
It represents DeSantis’ ideological perspective on Big Tech regulation, that’s why this particular debate is significant.
The Congress is focused on issues such as antitrust law and “creation” of competition, in addition to First Amendment concerns about Big Tech, DeSantis’ strategy is to focus on Big Tech’s impact on freedom of speech — a major concern for many conservatives — with state-level policy action that both considers and amplifies national policy efforts.
Given DeSantis’ intention to fight the injunction, it’s vital to know that other legal minds have weighed in on the tactic. In April, for example, Clarence Thomas “appeared to argue that social media companies like Facebook and Twitter should no longer be able to hide behind First Amendment and Section 230 in their bid to regulate certain forms of speech on their platforms.”
Thomas pointed to two key issues that could be key components of a legislative strategy to thwart Big Tech’s efforts to stifle conservative expression online.
To begin with, the claim that corporations like Twitter are “public accommodations” would give legislators powerful capabilities to oversee their content control – for better or worse.
Second, the explicit judicial recognition that social media corporations are using Section 230 to gain “immunity” for their “bad-faith” removal of third-party content provides another hint that Section 230 could be changed in the near future.