The new law requires Big Tech companies to tell people exactly why their opinions have been censored, apply their standards consistently to all users regardless of their political and social opinions, and give due notice of changes to content-moderation policies. In short, Big Tech bureaucrats must treat all opinions alike if they are to enjoy immunity to lawsuits in Florida.
Section 230 of the federal Communications Decency Act of 1996 gives internet communications “platforms” immunity from lawsuits over content moderation in removing “obscene, lewd, lascivious, filthy, excessively violent, harassing” user communications. It was meant to ensure “good faith” actions to remove obscene material would not be punished by a hailstorm of lawsuits. The law does not give Big Tech oligarchs the right to censor news and other facts, assertions, and opinions that make leftists feel squirrely.
Freedom of speech is not a one-way affair in which government is prohibited from interfering with speech but individuals and corporations may muzzle their neighbors.
The new Florida law establishes proper protection of speech in the Sunshine State, defining censorship as “any action taken by a social media platform to delete, regulate, restrict, edit, alter, inhibit the publication or republication of, suspend a right to post, remove, or post an addendum to any content or material posted by a user. The term also includes actions to inhibit the ability of a user to be viewable by or to interact with another user of the social media platform,” such as shadow-banning and deplatforming.
That is a highly informative passage. Defenders of Big Tech routinely argue that these companies have a right to do whatever they want because they are not government entities. That is false.
Big Tech companies are engaging in censorship, plain and simple. The fact that they are in the private sector does not change the definition of the word. What it does mean is that Congress cannot impede their freedom to publish. The Constitution reserves that power and others to the states or the people under the 10th Amendment. Florida is exercising that authority.
In fact, the states have an active responsibility to protect their residents’ free-speech rights. Freedom of speech is not a one-way affair in which government is prohibited from interfering with speech but individuals and corporations may muzzle their neighbors. On the contrary, the proper role of government is not only to avoid restricting speech itself but also to protect the rights of the people to speak and be heard. That is exactly what Florida’s law is intended to do.
The law adds teeth to its requirements, identifying the circumstances under which a Florida resident can bring a lawsuit for violations — “a private cause of action” — and specifies how damages will be calculated. Big Tech makes huge fortunes by promising to send people information they want to receive. Companies that break that promise should have to pay for the damage they do. The new law establishes the same standard as laws that already apply to other businesses.
The law also authorizes the state’s attorney general to prosecute technology companies for these violations under Florida’s Deceptive and Unfair Trade Practices Act and creates an “antitrust violator” blacklist that prevents censorship-happy oligarchs from contracting with public entities throughout the state.
Deplatforming political candidates, a common practice in the past year, is an obscene attack on our nation’s election system, and any company that suppresses the communications of a political candidate should pay a heavy price for it. Florida’s law makes that a reality. It is a big win for fairness and justice.
The deep-pocketed Big Tech companies will surely sue to block this law. Even though Florida is just one of 50 states, it is the third-most populous in the nation and growing fast. Plus it has one of the country’s best economies. A flood of lawsuits from a state of more than 21 million people would go a long way toward ensuring Big Tech corporations think twice before deplatforming people and censoring the news to reflect Silicon Valley’s political ideology.
Florida’s new law is exactly the right way to deal with fraudulent and bigoted actions by gigantic, multinational social media corporations. Let’s hope dozens of states follow suit in the months to come. There’s no hope for the federal government to do anything right in the foreseeable future, so it is critical that the states act to protect the rights of the people.
S.T. Karnick (firstname.lastname@example.org)is a senior fellow and director of publications at The Heartland Institute.