Censoring the Censors? Florida’s Anti-Censorship Law


 

On May 24, Florida Gov. Ron
DeSantis signed a bill designed to stop social media firms from censoring free speech.  At least that’s what the governor’s website
claims it does.  Two big-tech industry
groups, Netchoice and the Computer and Communications Industry Association
(CCIA), sued the state of Florida in early June over the legislation, which is
scheduled to take effect on July 1.  What
exactly does the law do, and why are organizations such as Facebook, Twitter,
Amazon, and Google sponsoring a lawsuit to halt it?

 

People of certain political
persuasions need not look far for motivations to pass such a law.  Following the assault on the U. S. Capitol on
Jan. 6 of this year, the alternative social networking service Parler, which
attracted users that had been suspended from mainstream media such as Twitter,
found itself without Amazon’s hosting service and cut off from Apple’s and
Google’s facilities as well.  And former president
Donald Trump is still banned from mainstream social media.  These are just the tips of an iceberg of
censorship that some people view as politically motivated.

 

The bill signed by Gov.
DeSantis would provide for fines of up to $250,000 for “willfully deplatforming”
political candidates, and also allows private citizens to sue firms committing
such indiscretions as well.  Social media
firms cannot de-platform any statewide or local political candidate, or else
they face penalties of up to $250,000 a day. 

 

The Netchoice-CCIA suit
alleges that this law constitutes a “smorgasbord of constitutional
violations,” according to an article in National Review.  If allowed to take effect, the suit says it
will impede the social media firms’ ability to “protect
their services, users, advertisers, and the public at large from a variety of
harmful, offensive, or unlawful material.” 

 

Just to take a
hypothetical extreme case, you have to admit that the CCIA suit has a
point.  Suppose for the sake of argument
that a Florida candidate for statewide office chose to post some child
pornography in a political blog on Facebook. 
Leaving aside the bad judgment on the part of the candidate, Facebook
would be caught between a rock and a hard place.  If they deplatform the candidate, they would
face fines from the State of Florida. 
But if they leave the post alone, they will be an accomplice to numerous
other violations of federal and state laws. 

 

On the other
hand, the law is part of a growing trend for legislatures and governments in
general to put the screws to Big Tech in various ways.  Now that social media carry the bulk of
public discourse (as opposed to the legacy media of radio, television, and
newspapers), they find themselves walking a fine line between suppression of
free speech and toleration of harmful content.

 

The Florida
law is only the latest in the history of attempts on the part of states to suppress
or control mass media.  Lousiana saw a
more blatant effort when Huey Long, who formally left the governor’s office in 1932
to be a U. S. senator but effectively kept running the state anyway, passed a
steep tax on large-circulation Lousiana newspapers, calling it a “tax on
lying.”  In the present case, ironically,
Florida is not penalizing the media for what they’re saying, but for what they’re
not saying, or rather for what they’re not allowing certain parties to do or
say on their platforms. 

 

This issue can be viewed as a contest between rival
goods:  the good of free speech for
political discourse and democratic government, and the good of avoiding what,
in the phrases of the CCIA suit, is “harmful, offensive, or
unlawful.”  And the unfortunate
thing is that the parties to the conflict have little or no agreement as to exactly
what these rival goods are.

 

Take the concept of free speech.  Back at a time, say sixty or eighty years
ago, when there was a general public consensus that airing political views of
almost any stripe, from theocratic conservatism to anarchic Communism, was to
be tolerated for the good of the republic, there was also a general public consensus
that hard-core pornography should be banned from publicly accessible media,
including the U. S. Postal Service.  Gradually,
however, the concept of free speech was expanded to encompass what earlier
generations would regard as pornography, and today there is a
multibillion-dollar worldwide online trade in porn, which not only effectively
enslaves thousands who are involved in producing it but corrupts those who
watch it.

 

Unfortunately, there is today no general consensus on what
sort of content is harmful, offensive, or even unlawful.  If everything I think is harmful or offensive
was banned from the Internet, the Internet would be a much smaller
enterprise.  Yet when social-media companies
hire hundreds of young people and give them whatever training they receive to
identify undesirable content that violates the firm’s “standards,”
and remove the content if necessary, they  exercise personal judgment which inevitably
turns out to be inconsistent, intermittent, and subjective. 

 

Of course, important decisions such as banning Donald Trump
are undertaken with the knowledge and approval of the firm’s leadership, but my
point is that the diffuse and multifaceted nature of social media means that
whatever restrictions they try to apply will also be diffuse, multifaceted, and
guaranteed to make somebody unhappy.

 

I don’t have a good solution to this problem.  Section 230 of the Communications Decency Act
protects social-media firms from being sued as though they themselves
originated the stuff that their users post. 
If we began treating social-media companies as common carriers like the
telecommunications firms, and insisted that they let anybody post anything, we
would need a more effective legal means to go after the individuals who would
exploit this new freedom than what we now have. 
But if we simply shrug our shoulders and let Mark Zuckerberg and his
friends suppress anything they don’t like, we have handed the keys of democracy
to a bunch of billionaires, and that is likely to turn out badly too.  Stay tuned.

 

Sources:  The National
Review
article “Groups Representing Tech Companies Sue Florida over
DeSantis Anti-Censorship Bill” appeared on June 2 at https://www.nationalreview.com/news/groups-representing-tech-companies-sue-florida-over-desantis-anti-censorship-bill/.  I referred to Gov. DeSantis’s website
description of the bill at
https://www.flgov.com/2021/05/24/governor-ron-desantis-signs-bill-to-stop-the-censorship-of-floridians-by-big-tech/,
and Elizabeth Kolbert’s 2006 article on Huey Long in The New Yorker at https://www.newyorker.com/magazine/2006/06/12/the-big-sleazy,
from which I took the quotation about a tax on lying.

 



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