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.