Many conservatives want something done about Big Tech and the enormous power it wields. The worry is well placed. But Florida Gov. Ron DeSantis’s bill penalizing social media companies that ban politicians was a bad idea and was predictably struck down by a federal court this week. Florida Gov. Ron DeSantis speaks at the Capitol Monday April 29, 2019, in Tallahassee, Fla. (AP Photo/Steve Cannon)

Florida’s anti-Big Tech bill was doomed to fail

Kaylee McGhee White July 01, 12:34 PM July 01, 12:34 PM

Many conservatives want something done about Big Tech and the enormous power it wields. The worry is well placed. But Florida Gov. Ron DeSantis’s bill penalizing social media companies that ban politicians was a bad idea and was predictably struck down by a federal court this week.

The bill aims to do many things: 1) prevent social media companies from deplatforming elected officials and political candidates, 2) require social media companies to publish their content moderation rules and then apply those rules consistently, and 3) require social media companies to give users an advanced notice and/or a second chance before kicking them off the platform entirely.

These are all very real problems. Big Tech is notoriously hypocritical when it comes to enforcing its content moderation rules, which really only exist to give Facebook, Twitter, YouTube, and the rest an excuse to police wrongthink.

The problem, however, is that the law at present protects these companies from being forced to carry speech they might find objectionable or offensive. Facebook and Twitter are still private companies, protected by not only Section 230 of the Communications Act of 1934 but by the First Amendment itself, which means the government cannot force them to host or disseminate speech they dislike.

This was U.S. District Judge Robert Hinkle’s primary complaint against Florida’s law:

“The legislation compels providers to host speech that violates their standards — speech they otherwise would not host — and forbids providers from speaking as they otherwise would,” he wrote.

“The plaintiffs are likely to prevail on the merits of their claim that these statutes violate the First Amendment,” Hinkle added. “There is nothing that could be severed and survive.”

As long as social media companies are provided the legal protections granted to private companies, bills like DeSantis’s will fail — and for good reason. No private company or business or business owner should be forced to violate its values by disseminating speech with which it disagrees. Does Colorado baker Jack Phillips ring a bell?

This is not to say that Big Tech can and should remain immune from regulation. But first, the federal government must change the law to treat social media companies more like “common carriers” or public utilities such as telephone companies. The government would be well within its rights to do this, as Supreme Court Justice Clarence Thomas noted in a recent opinion. But until that happens, laws such as Florida’s will inevitably find themselves getting tossed from court.

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