Read the original article: No, Florida Can’t Regulate Online Speech
Republican Governor Ron DeSantis has promised that Florida will soon enact “the most ambitious reforms yet proposed” for “holding ‘Big Tech’ accountable.” The bill would force large “social media platforms”—entities that enable users to access “a computer server, including an Internet platform and/or a social media site”—to apply their content moderation standards in a “consistent manner,” to change those standards no more than once a month, and to let users turn off algorithmic promotion or post sorting. It would also block websites from moderating content posted by politicians during an election. “We’re going to take aim at those companies,” DeSantis says, “and pull back the veil and make sure these guys don’t continue to find loopholes and gray areas to live above the law.”
Although DeSantis poses as a champion of free speech, his bill would trample on private companies’ First Amendment right to exercise editorial discretion. Private actors cannot be compelled either to host certain speakers, or to privilege some forms of speech over others. This is even more true of political speech, which, contrary to DeSantis’s claims, the bill is likely to suppress. Although DeSantis frames some parts of it as a campaign finance measure, the bill does not even regulate campaign contributions. And although he frames other parts as a consumer protection measure, the bill in fact targets entities precisely because of what they choose to say (or not say). The bill is, in essence, nothing more than an attempt to impose a new Fairness Doctrine on the internet.
This content-based regulation would compel social media platforms to carry government-backed speakers and speech. This is unconstitutional, as can be seen from what happened to another bad Florida law. That one, passed in 1913, gave political candidates a right to reply to critics, free of charge, in the paper that published the criticism. In Miami Herald Publishing Co. v. Tornillo (1974), the Supreme Court unanimously struck the law down. “The choice of material to go into a newspaper,” the court wrote, “constitute[s] the exercise of editorial control and judgment.”
Only once has the Supreme Court upheld a “fairness” or “equal time” mandate on privately owned media. But that was a special case. In 1969, Red Lion Broadcasting Co. v. FCC upheld the Federal Communication Commission’s Fairness Doctrine only because broadcast frequencies are scarce, they are owned by the public, and the government licenses their use—clear “state action.”
The court has repeatedly held that digital media enjoy the same First Amendment protection as traditional media. DeSantis counters that Big Tech companies are monopolistic. The plaintiff in Miami Herald made a similar argument—and, indeed, many local markets really did have only a single newspaper. Yet the court ruled that no degree of monopoly power could diminish the First Amendment’s protection of newspapers’ editorial discretion.
Many critics of Big Tech—not only DeSantis but also politicians in other states, such as Texas, that are considering bills similar to Florida’s—have used terms like “town square” and “public forum” in arguing that the First Amendment constrains, rather than protects, the editorial discretion of large websites. But social media platforms, even big ones, do not qualify as “public fora,” in the technical legal sense, because they don’t do anything traditionally and exclusively done by the government—like running literal town squares. “[M]erely hosting speech by others is not a traditional, exclusive public function,” Justice Brett Kavanaugh wrote for the court in 2019, “and does not alone transform private entities into state actors subject to First Amendment constraints.” In February 2020, the U.S. Court of Appeals for the Ninth Circuit affirmed that YouTube is not a public forum under this definition.
No one, not even a political candidate, has a First Amendment right to force a private actor that is not a public forum (or some other form of de facto state actor) to provide a platform for speech. On the contrary, tech companies have a First Amendment right to free speech and free association—and may therefore decide whom they will and will not host.
DeSantis’s bill would let users opt out of “post prioritization” (the placement of content “ahead of, below, or in a more or less prominent position than others in a newsfeed, feed, view, or search results”) and “shadow banning” (measures, including ones “not readily apparent to a user,” that “limit or eliminate the exposure” of a user or her content “to other users of the social media platform”). Yet these are matters of editorial discretion, as Miami Herald makes clear. Likewise, Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston barred the
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Read the original article: No, Florida Can’t Regulate Online Speech