On lockdowns, vaccine passports, critical race theory, E-verify, and many other issues, Florida governor Ron DeSantis leads the way for Republicans. But in one important area, Big Tech censorship, he is being let down by poorly crafted legislation.
In February, Gov. DeSantis turned heads across the political world when announced what appeared to be the most ambitious state-led crackdown on political interference by Big Tech yet seen.
The governor called for a string of aggressive measures; bans on the blacklisting of political candidates, fines on companies that failed to comply, the ability of citizens to opt out of Big Tech’s data harvesting and censorship algorithms, a private right of action for censored users, and more. Republicans in Florida’s house of representatives have used this legislative session to draft a bill aimed at making DeSantis’ proposals the law of the state.
As things stand, Florida’s Republican lawmakers seem to have completely dropped the ball. On paper, the bill (read the draft here) contains most of what DeSantis asked for.
But because the bill is missing a crucial element – the categorization of tech companies as common carriers or places of public accommodation – most of the provisions are unenforceable, destined to be proven ineffective in the courts.
The bill certainly sounds good. Banning (and shadowbanning) political candidates is prohibited, with daily fines if companies fail to comply. Banning or censoring a journalistic enterprise based on the content it publishes (like the New York Post Hunter Biden stories) is prohibited. Users will be allowed to opt out of Big Tech algorithms.
All of these are great ideas. But without common carriage or public accommodation measures, it is highly doubtful that they’ll survive legal challenge.
If the bill passes in its current form, tech companies will simply argue in court that they have a First Amendment right to deny service to whomever they please. The courts will take their side, as they have done many times before.
The only types of businesses that are restricted by the government in who they can or cannot deny service to are those regulated by common carriage or public accommodation laws. Because the Florida bill does not attempt to make social media companies subject to those laws, it makes most of its other provisions meaningless.
Republican legislators can’t plead ignorance as an excuse. Justice Clarence Thomas explained how all this stuff works in a legal opinion published while Florida’s bill was still being drafted.
This leaves two possibilities, both glum: either Florida lawmakers are so incompetent that they weren’t paying attention to, or failed to comprehend what Clarence Thomas said. Or, worse: they deliberately crafted a piece of legislation that is doomed to fail in court.
Florida recognizes that social media platforms have become the digital public square, but without common carriage or public accommodation provisions, this bill effectively allows left-wing extremists to continue using that public square as their personal salon.
To be very clear — it’s not that Florida can’t categorize tech giants as common carriers or public accommodations. It is perfectly within the jurisdiction of a state government to do so.
Adam Candeub, a tenured law professor and expert in communications law, agrees. Candeub was acting director of the National Telecommunications and Information Agency (NTIA) under Trump, where he drafted the President’s flagship tech regulation proposal (Trump lost re-election before they could be implemented).
“As Justice Thomas’s recent concurrence set forth–as well as recent cases from the D.C. Circuit and a California district court, the states may impose their own common carriage and/or public accommodation solution to the social media problem,” Candeub told Breitbart News.
The bill isn’t a complete disaster. One very good thing about it is its transparency requirements, which require social media companies to notify users of any algorithms used to prioritize posts.
This measure, which can’t be dodged with the First Amendment, takes the “shadow” out of “shadowbanning.”
But that may be the only upside to a bill that is riddled with flaws.
One glaring omission is the fact that its protections for political candidates are not retroactive. If a previously banned user decides to run for office, it is not clear that the bill would protect them.
This means that two of the most high-profile Floridian victims of censorship, Donald Trump and Laura Loomer, may not be protected — not to mention potentially thousands of other Florida residents who have been banned from social media platforms and who may wish to run for office one day.
Another lackluster proviso is the stipulation that social media platforms must “allow a user to opt out of post-prioritization and shadow banning algorithm categories to allow sequential or chronological posts and content.”
While I’ve long been an advocate of opt-outs, giving users a binary choice between a chronological feed and every big tech algorithms isn’t particularly helpful for consumers.
Consumers should have the ability to disable specific filters (like filters on “hate” or “authoritativeness”), while keeping others switched on, not the all-or-nothing choice suggested by this bill.
At the very least, users should have a chance to enable filters on obscenity and spam without agreeing to every other filter used by social media platforms. Google has done this for years with “safe search,” why can’t Twitter and Facebook?
Then again, this assumes that filtering opt-outs are even enforceable as the bill currently stands. Without common carriage or public accommodation provisions, they probably aren’t.
Again, we must confront two options. Either Florida’s Republican legislators are too poorly informed to write an effective tech regulation bill, or they always intended to write a defanged one.
Either way, if passed in its current form, the bill will represent a tremendous missed opportunity. A simple rule to designate social media platforms common carriers or places of public accommodation in Florida would accomplish everything this bill sets out to do and more.
For whatever reason, Republican legislators in the Sunshine State have not countenanced such a rule. Governor DeSantis is now at risk of being sent a bill, widely hyped and publicized, that proves all bark and no bite.
Breitbart News reached out to Florida GOP chairman and state legislator Rep. Blaise Ingoglia (FL-35) ahead of publishing this piece, but did not receive a response.
Allum Bokhari is the senior technology correspondent at Breitbart News. He is the author of #DELETED: Big Tech’s Battle to Erase the Trump Movement and Steal The Election.