On Tuesday, Florida's Republican Gov. Ron DeSantis announced in a press conference pending legislation that, if passed, would punish tech companies like Facebook and Twitter for deplatforming candidates for political office in his state. Companies would face a fine of up to $100,000 per day until restoring a candidate's access to their platforms
There's more to DeSantis' plan, and the bill has not yet been drafted, so the details aren't clear. What is clear, though, is that DeSantis is among those conservative politicians who want to use the power of the government to require that social media carry their messages.
"We've seen the power of their censorship over individuals and organizations, including what I believe is clear viewpoint discrimination," DeSantis said at the press conference.
It's very tempting to look at DeSantis' proposal and immediately dismiss it as unconstitutional, a violation of the free speech rights of the platforms themselves. They are private companies. Isn't requiring companies to carry political messages that they might find offensive essentially equivalent to mandating speech? Isn't DeSantis ordering tech companies to "bake the cake"? The Supreme Court has any number of precedents that forbid the government from forcing private businesses to distribute messages they find offensive. Florida couldn't possibly demand that Facebook, for example, host messages from somebody who was openly a violent nationalist just because that person is running for office, could it?
Actually, it's complicated, explains Eugene Volokh, professor of law at UCLA, co-founder of the Volokh Conspiracy (hosted here at Reason), and go-to expert on First Amendment issues. While it's true, Volokh explains, that we have a line of federal rulings prohibiting the government from mandating that private businesses carry speech, there are exceptions.
You've seen one of these exceptions if you've ever encountered a petition signature-gatherer at a California shopping mall. In a 1980 decision, Pruneyard Shopping Center v. Robins, the Supreme Court ruled that California could mandate that Pruneyard allow protesters to engage in political advocacy there, even though it was private property. The mall wasn't being ordered to host particular messages, but rather serve as a carrier of a type of communication, which was political petitioning in this case.
"I think it's a pretty good argument that the platforms could be treated like the law treats shopping malls," Volokh says.
DeSantis is proposing forcing tech platforms to host candidates regardless of their positions or parties (including, presumably, DeSantis' political opponents). He is attempting to force these platforms to serve as carriers of messages without policing the content, much like phone companies can't control the speech of their customers.
And so, DeSantis' proposal brings to the forefront the debate raging about social media: Are these places platforms or publishers? If they're platforms, does that also make them "common carriers" of information? Can the government treat them like shopping malls for the purposes of fostering political participation?
There is, in fact, a barrier that will get in the way of DeSantis implementing this bill as he has described it: our old friend Section 230 of the Communications Decency Act. Section 230 clearly states, in no uncertain terms, that an internet service provider cannot be held liable for censoring content it deems "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected." [Emphasis added.]
This part of Section 230 is why it's absolutely inaccurate when politicians and critics insist that the provision's protections require a platform to have any sort of neutrality. They do not. They never did. And this is precisely why some people want to get rid of Section 230.
But even if DeSantis' bill runs headlong into Section 230, Volokh notes that the outcome might not be the most predictable one: federal law taking precedence and overruling Florida's law. Volokh (and a recent Wall Street Journal op-ed) points to Supreme Court precedents that actually favor state mandates that force private entities to serve as carriers of speech when the state laws conflict with federal statutes, as opposed to conflicting with the Constitution. In these cases, the argument is that the federal statutes are actually interfering with the state's efforts to protect the free speech rights of its citizens.
You may not agree with such an argument, because it appears to grant states the power to declare that any number of private entities must serve as a speech platform. Volokh himself says he's not sure he's persuaded by such an argument. But the point is that these precedents exist and must be considered when looking at Section 230's future, particularly for those who support the law.
"I think this is a genuinely unresolved issue," Volokh says. "This might be a sort of thing where there might be a consensus in Congress: 'You don't want these quasimonopolisitic corporations influencing elections that sharply, not just through their speech, but through the blocking of speech.' I could see Democratic and Republican lawmakers saying, 'That's something we don't want under this private control.'"
That doesn't make DeSantis' proposed legislation good or something that should be supported. Social media platforms potentially being forced to carry obscene or violent messages because they come from a candidate for office is morally unsupportable, and the unintended consequences are visible from the moon. Facebook and Twitter shut you down because you keep accusing people who piss you off of being pedophiles? Just run for office!