Attempt to silence social media clearly unconstitutional

On May 24, Gov. Ron DeSantis signed into law one of his signature pieces of legislation for 2021 — a law to rein in what he described as big tech censorship. Senate Bill 7072 bans social media platforms from cutting off political candidates’ posts to their platforms, changing how posts by or about a candidate are seen, or adding system comments to posts by a “journalistic enterprise” based on the content. It also bans the deeming of new stories to be “disinformation” and blocking their sharing on the platform. 

As this legislation worked its way to the governor’s desk, it was widely pointed out that these restrictions are blatantly unconstitutional. The First Amendment, as interpreted by many court precedents, clearly says the government cannot mandate that private companies carry speech they find objectionable or offensive — just like Christian cake-makers cannot be forced by government to bake gay wedding cakes, or a liberal newspaper can’t be forced to publish conservative op-eds.   

So, it took less than six weeks for a federal court to block the law. The judge pointed out the clear violation of the First Amendment, writing, “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.” And that “[T]he governor’s signing statement and numerous remarks of legislators show rather clearly that the legislation is viewpoint-based.”

The state’s GOP leaders really did give themselves away in their joint statement at the signing of the bill. DeSantis said Big Tech would no longer be able to censor and discriminate in favor of their ideology. Lt. Gov. Jeanette Nuñez claimed Big Tech oligarchs censor views contrary to their radical leftist narrative. Senate President Wilton Simpson said we have to stop the abuses of unchecked Big Tech. Speaker Chris Sprowls said we need to bring the Big Tech monopolies out of the dark. And other GOP legislators chimed in, claiming Big Tech oligarchs threaten free speech. 

Virtually everything they said is untrue and deeply contrary to the conservative principles they claim to uphold. Social media platforms, or any private person or company, cannot censor anyone. Only the government can forbid the promulgation of speech by a person — that is what censor means. A popular company is not an oligarchy or a monopoly. It is deeply disturbing to see Republican leaders decide their desire to force popular social media companies to do their bidding is more important than standing up for the First Amendment and the rest of the Constitution. 

Nor has the governor applied his justification for the law consistently and fairly. The law exempts some favored companies from the restrictions — like Disney. Yes, Disney does social media, which might be a clue that Twitter and Facebook are not monopolies: They compete against each other and Disney. And if that sentence didn’t give you a headache you are not paying attention. So state lawmakers thought it important that Disney be allowed to not include posts it finds objectionable, but those lefties in Silicon Valley should not be able to do so. … You begin to see why the judge said the law is rather clearly viewpoint-based. 

You can see that even more in Gov. DeSantis’ reaction to Twitter blocking Rebekah Jones, the former Florida Department of Health web employee who accused his administration of covering up COVID-19 deaths. The governor says he opposes social media companies blocking people and the sharing of stories based on their ideology, and the new law he signed forbids it. Yet when Jones was blocked by Twitter, DeSantis said, “This decision was long overdue. Rebekah Jones is the Typhoid Mary of COVID-19 disinformation and has harmed many hardworking DOOH employees with her defamatory conspiracy theories.” So, he actually only opposes social media blocking people or statements he doesn’t like.

The state attempting to control the decisions of private parties like social media platforms on what content they will or will not share cannot help but fall into this kind of political opportunism. As the lawsuit against the Florida law stated, it “was motivated by animus toward popular technology companies—animus specifically driven by disapproval of the companies’ perceived political and other viewpoints.” The First Amendment explicitly was created to prevent that. If the Florida law were legitimate, then any Democratic state would be equally legitimate with a law restricting conservative social media. It’s a vicious cycle of political manipulation and control with no good end. 

People who consume social media want moderation by the social media platforms. They want some lines to be drawn so that the platform doesn’t get swamped by hate or other unacceptable behavior. The companies provide that in a competitive market, and the ones that do a good job of providing a system people enjoy using get more customers. It’s pretty straightforward and consistent with what Florida’s GOP leaders say when they talk about the rest of the market.  

Replacing private moderation in a competitive market that lets all of us find the social media platforms we prefer with government control of content would be a disaster for free speech and the rest of our liberties.  

There are a multitude of search engines and social platforms to choose from. The right response to behavior by any one of them that you don’t like is to go try a different one. And recognize that social media is still simply one of many ways any person or political candidate can get their voice out. There remain all the instruments of conventional media from newspapers to talk radio to rallies and podcasts, and who knows what we will see next. Investor websites highlight dozens of “new social media startups to watch in 2021.” There is plenty of competition, and no need for dumb and unconstitutional laws that try to control social media companies the politician of the day doesn’t like.  

Adrian Moore, Ph.D., is vice president of the Reason Foundation and lives in Sarasota.