MADISON – Are social media giants entitled to more First Amendment rights than individual Americans? The President of the United States?
That’s how some feel about a federal judge’s recent decision blocking Florida’s new law that dares to hold social media companies accountable for censoring political speech. And the court ruling could spell immediate defeat for a similar bill introduced last week in the Wisconsin Legislature.
The law, signed in May by Republican Gov. Ron DeSantis, empowers the Florida Election Commission to issue a $250,000 fine per day on social media companies that de-platform any candidate running for statewide office and $25,000 per day for candidates running for non-statewide office.
“If Big Tech censors enforce rules inconsistently, to discriminate in favor of the dominant Silicon Valley ideology, they will now be held accountable,” DeSantis said at the bill signing.
In a preliminary injunction, U.S. District Judge Robert Hinkle of the Northern District of Florida wrote that he found the law unconstitutional. As the Washington Examiner reported, Hinkle scolded the state’s officials for arguing that they “were on the side of the First Amendment; the [social media companies] were not. It is perhaps a nice sound bite. But the assertion is wholly at odds with accepted constitutional principles.”
Hinkle noted that “concentration of market power among large social media providers does not change the governing First Amendment principles.”
Republicans have called out Facebook, Youtube, Twitter and others for silencing conservative speech. Twitter and Facebook have banned former President Donald Trump.
Hinkle, nominated to the federal bench by President Bill Clinton, didn’t temper his disdain for Florida’s law. He compared it to “burning the house to roast a pig,” as he found the plaintiffs “are likely to prevail on the merits of their claim that these statutes violate the First Amendment.”
Three days after DeSantis signed the anti-censorship bill, NetChoice and the Computer and Communications Industry Association filed a lawsuit claiming Florida’s law is an unconstitutional assault on free speech. They praised Hinkle’s ruling.
“We cannot stand idly by as Florida’s lawmakers push unconstitutional bills into law that bring us closer to state-run media and a state-run internet,” NetChoice Vice President and General Counsel Carl Szabo said in a statement. “The First Amendment protects social media platforms’ right to host and moderate content as they see fit for their business models and users.”
DeSantis has said he will appeal the decision in the U.S. Court of Appeals for the 11th Circuit.
“Gov. DeSantis continues to fight for freedom of speech and against Big Tech’s discriminatory censorship,” a spokeswoman for the governor told the New York Post.
Tech and speech watchers say the Florida court ruling doesn’t bode well for similar bills introduced in other states. Last week, Wisconsin conservative lawmakers introduced the tech accountability bill they say is aimed at protecting free speech from the long arm of Big Tech censorship.
“It’s time to ensure that Mark Zuckerberg and his Silicon Valley liberal allies cannot restrict Wisconsinites’ political speech,” said co-author, Sen. Julian Bradley (R-Franklin). “Free expression is one of the most vital components of our democratic republic. We must ensure our citizens can engage in political speech unfiltered and uncensored by Big Tech. It’s time for Facebook and Twitter to consistently and fairly enforce their own rules.”
Under the bill, Big Tech companies would be required to:
- Publish their moderation standards
- Apply moderation consistently across all of its users
- Give notification and an explanation for certain censoring actions, and provide annual notice of the types of algorithms used in content moderation, among other things
- Allow users to opt-out of an algorithm’s post prioritization.
The bill also prohibits social media companies from censoring content by or about candidates in Wisconsin or elected officials. Individuals would have the right to sue a social media platform that violates these provisions, with monetary penalties for de-platforming, as well as punitive damages and attorney fees.
Last month, U.S, Sen, Josh Hawley (R-Mo.) introduced a bill loosening Big Tech’s immunity protections under Section 230 of the Communications Decency Act. The legislation, too, allows Americans the ability to sue technology companies that “act in bad faith by selectively censoring political speech and hiding content created by their competitors.”
“For too long, Big Tech companies like Twitter, Google and Facebook have used their power to silence political speech from conservatives without any recourse for users,” Hawley said. “Section 230 has been stretched and rewritten by courts to give these companies outlandish power over speech without accountability. Congress should act to ensure bad actors are not given a free pass to censor and silence their opponents.”