Gov. Ron DeSantis and other Republican leaders recently announced proposed legislation targeting big tech giants that own social media platforms. They accuse them of censoring conservative voices.
Legal experts who say the proposed crackdown is unconstitutional.
“Social media platforms have become among the most powerful mechanism for a private citizen to make his or her voice heard, and it’s incumbent upon us to ensure those voices are not capriciously and vindictively targeted,” DeSantis said as he addressed reporters at the Capitol with a lengthy prepared statement. He wants to address deplatforming, when a user’s account is suspended, especially during an election.
As rampant misinformation flowed during election season, platforms like Twitter and Facebook used algorithms to determine whether a post was problematic. That irritated DeSantis, who complained about a seemingly benign video about a vaccine update being flagged for sensitive content.
President Donald Trump’s persistent assertions about voter fraud led to his ban from multiple platforms. Twitter said Trump’s account was permanently suspended due to the risk of further incitement of violence following the January 6th insurrection at the Capitol.
The new conservative talk platform Parler was dropped from its hosting site last month because of posts that Amazon Web Services said encouraged violence.
DeSantis complains that high profile threats from other world leaders go unfettered. So he has announced legislation that would bar tech companies from blocking posts regarding political candidates. Platforms could be fined $100,000 each day a candidate’s account is suspended. In addition, a platform’s promotion of a candidate would be considered a campaign contribution that must be reported to the state.
“Big tech firms have evolved into a kind of modern day public square,” said Florida House Speaker Chris Sprowls. “In doing so, they have access to private information and the ability to exercise control over individuals’ free speech.”
That term “public square” has been repeatedly used by state leaders to describe social media platforms. But, they aren’t.
Senate President Wilton Simpson accuses platforms of engaging in political censorship and says they have “a duty to allow differing views on their public platforms.” Actually, they don’t.
“Lascivious, filthy, excessively violent harassing speech is not protected by the First Amendment. So to say that is censoring I think is in error,” says Pamela Marsh, president of the First Amendment Foundation in Tallahassee. “These platforms like Facebook and Twitter and Parler, they feel like public forums where you're exercising your right to free speech. But those companies are corporations, and the First Amendment doesn't apply to them plain and simple.”
“Facebook says you can use our site. You have to conform to our terms of service. If you violate our terms of service, we can kick you off,” says Tom Julin, a first amendment lawyer in Miami. He works with the statewide Gunster law firm and has been handling free speech cases for about 40 years.
Julin says when Congress passed Section 230 of the Communications Decency Act, it wanted companies to be able to make decisions about speech that they found objectionable and to exclude people from their websites “without fearing that they would be subjected to some sort of liability for doing so.”
Marsh says there is clear evidence that the proposed legislation is unconstitutional. “I believe that passing any law that would regulate social media would violate both the Commerce Clause and the Supremacy Clause — because the federal government has that exclusive authority to regulate interstate commerce,” Marsh says. “Commerce Clause, First Amendment, all of those things are front and center in first year law schools.”
The Justice Department is prosecuting antitrust claims against Google and Facebook. Both companies have gotten very large, and breaking them up could lead to more competition. Ultimately, Congress has the power to decide whether additional regulation of social media platforms is warranted.
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