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DeSantis pushes back on Big Tech social media censorship — but can his bill survive legal review?

New Florida law may provide legal test of government's authority to prohibit politically motivated censorship by social media giants.

Updated: May 28, 2021 - 10:24pm

The Facts Inside Our Reporter’s Notebook

Last week, Florida Gov. Ron DeSantis signed into law a bill that takes on Big Tech companies in his state. The law, however, is taking criticism — from both right and left — that parts of it may be unconstitutional and that its notable exemptions for some big companies undermine its goal of standing up to domineering industry giants.

Florida's "Big Tech Bill" aims to protect social media users — whether political candidates, journalistic outlets or ordinary users — from ideologically selective censorship  by internet platforms like Facebook, Twitter and Google. Among its major provisions, the law will:

  • Fine companies up to $250,000 per day for suspending political candidates from a platform during the run-up to an election
  • Require platforms to make public the rules they use to regulate their user content and provide users with explanations as to why they have been censored
  • Require companies to provide users an appeals process or chance to "correct" their flagged content
  • Prohibit companies from censoring any "journalistic enterprise based on the content of its publication or broadcast."

Perhaps most importantly, the bill would empower individuals and the office of the Florida attorney general to much more easily sue these companies under the Florida Unfair and Deceptive Trade Practices Act.

Yet critics see the law as little more than a symbolic gesture destined to be struck down by the courts on constitutional grounds.

"I see this bill as purely performative: It was never designed to be law but simply to send a message to voters," Santa Clara University Law School professor Eric Goldman told the Washington Post. He argues that the bill will unconstitutionally restrict the editorial discretion of platforms that act as online publishers — a First Amendment violation.

Kurt Opsahl, the deputy executive director of the Electronic Frontier Foundation, told "Just the News AM" that while there's much legislative work to be done on the subject of internet transparency, it "doesn’t end up being very helpful to pass an unconstitutional bill that is going to be challenged immediately and likely to never go into effect." 

DeSantis is unconcerned with challenges to the constitutionality of the law, according to Amber Athey, Washington Editor of The Spectator, who interviewed the governor after the signing ceremony on Monday.

"He believes this will pass tests on whether it's unconstitutional on First Amendment grounds because the bill actually avoids anything to do with free speech," Athey told "Just the News AM." "He worked with the legislature on this to make it a consumer protection law."

Others argue the on-the-ground success of the bill is not necessarily the most relevant metric for measuring its efficacy. "There may be, in fact, First Amendment concerns with how it is structured," acknowledged Rachel Bovard of the Conservative Partnership Institute, but "this is what we see in a lot of cases — states taking action first on key issues on which they want the federal government to move, and so success sometimes isn't actually the point."

The bill is a signal that states are growing increasingly "impatient" with the federal government's failure to act substantively on Big Tech issues, said Bovard. "Consumers are ready for a sea change with how they relate to Big Tech and how the Big Tech companies relate to them," and this bill is "recognition that these platforms aren't just speech platforms," she argued. "They are massive digital advertising firms that are now sort of inextricably intertwined in our politics."

Athey agrees that the ultimate goal of the legislation may be to coax other states into the legal fray to get the federal government to seriously address tech conglomerates.

"It's kind of similar to what's happening with states banding together in the fight against biological men competing in women's sports," she said. "If they create this coalition, they're going to be a lot stronger when they eventually do have to go to court together."

Beyond the constitutional debate, National Review Online's Charles Cooke questions the exemptions in the bill. The text of the bill exempts "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." In the state of Florida, that little carve-out reads as a special favor for the Walt Disney Company and the Comcast Corporation, which own and operate Disney World and Universal Studios, respectively .

The concession to two huge corporations in a bill designed to target businesses with outsized power and influence has irked some, including Cooke, who wonders, "Why is it acceptable for Disney to 'censor' its commenters, but not for Twitter to?"

"It's disappointing to see ... that's exactly the type of government favor-giving that you're trying to avoid," Athey agreed. "At the same time, it's politics," she said, adding that it's "likely this was a necessary exemption in order for the bill to be passed in the first place."

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