Tuesday, May 25, 2021


As you probably know, Florida governor Ron DeSantis used the First Amendment as toilet paper yesterday:
Florida on Monday became the first state to regulate how companies like Facebook, YouTube and Twitter moderate speech online, by imposing fines on social media companies that permanently bar political candidates in the state.

... In addition to the fines for barring candidates, it makes it illegal to prevent some news outlets from posting to their platforms in response to the contents of their stories.

... Companies would be fined $250,000 per day for cases where they barred a candidate for statewide office. The fine is lower for candidates seeking other offices.

The law says the platforms cannot take down or otherwise prioritize content from a “journalistic enterprise” that reaches a certain size. Conservatives were outraged last year when Facebook and Twitter limited the reach of a New York Post article about the contents of a laptop it said belonged to Hunter Biden, the younger son of President Biden.
We're told that this bill is flagrantly unconstitutional, although at least one Supreme Court justice, Clarence Thomas, thinks treating tech platforms as "common carriers" and compelling them to transmit speech seems like a pretty good idea.

There's more to this bill than just the provisions that have made the headlines. There's also this:
S.B. 7072 ... contains a concerning provision that would establish an "antitrust violator vendor list." Companies convicted of antitrust violations will reportedly be placed on a list, and may not get contracts or do business with any public agency in the state. But further down in the bill there's a nasty twist: The state's attorney general can temporarily add a company to the list on the basis of merely being accused of or charged with antitrust violations, based on simply determining the state has "probable cause" that the violation occurred—an extremely low evidentiary threshold.

"The point is that when Republican state AGs file bullshit antitrust suits that are never going to go anywhere or [may] get tied up in court for years, it will still allow the Florida attorney general to use that as a predicate for some legal action," [Berin] Szóka [of the technology think tank TechFreedom] says. "The point isn't to get that judgment. It's to drag the company through the process so you have another circle for your political theater. It's a weapon. That's the whole point."
And here's a sentence in the bill that I find troubling:
A social media platform that willfully provides free advertising for a candidate must inform the candidate of such in-kind contribution.
What wrong is this intended to right? Social media companies don't really give away ad space, do they?

No, they don't -- but I see an opening here for (again) Republican state attorneys general to declare that certain material deemed favorable to a Democratic candidate on a social media platform -- for instance, prominent placement of news stories that shows a Democrat in a favorable light -- is "free advertising." A platform could be deemed in violation of the law for failing to report it, and a Democratic candidate could be accused of a campaign law violation for failing to list prominently placed favorable stories as donations.

And yes, in a world where Fox News exists, the fact that Republican government officials might treat upbeat coverage of Democrats as the equivalent of a cash donation seems absurd. But I think that's why this sentence is in the bill.

This is the world we're entering: a world in which free speech as guaranteed by the First Amendment is like abortion rights as guaranteed by Roe v. Wade. In Republican states, governors and legislators will chip away at the speech rights of their political opponents the way they've been chipping away at reproductive rights; the courts will endorse some of these constraints and reject others, but the rights will be increasingly limited, until, for the opponents of Republicans, the right to speech that truly challenges the (one-party) government essentially isn't there at all. If it can happen in the Eastern Bloc, it can happen here.

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