Fresh off his second-place finish — behind only former President Donald Trump — in the presidential straw poll at the Conservative Political Action Conference in Orlando, Gov. Ron DeSantis’ top priority heading into this year’s legislative session is custom-fit to appeal to the CPAC crowd: going after Big Tech social-media companies for their alleged anti-conservative bias.
DeSantis’ Transparency in Technology Act, which has support from House Speaker Chris Sprowls, R-Palm Harbor, and Senate President Wilton Simpson, R-Trilby, proposes fines of up to $100,000 a day for sites that “de-platform” candidates for office. The bill comes in the wake of the decisions by platforms like Facebook and Twitter to suspend Trump from using their services.
The effort would not be the first time that the state has tried to tell media companies what sort of political speech they must carry. But there’s every reason to believe this one would end exactly like a prior one did: by being struck down by the U.S. Supreme Court.
That earlier effort concerned a 1913 law giving candidates for public office a right to reply to newspaper editorials written about them. When the Miami Herald brought a challenge in the early 1970s, the Florida Supreme Court upheld the statute, finding it furthered the “broad societal interest in the free flow of information to the public” — a concern closely resembling the governor’s current arguments about “free speech.”
The U.S. Supreme Court disagreed. In the 1974 decision Miami Herald Publishing Co. v. Tornillo, the court upheld the newspaper’s First Amendment right to editorial discretion, whether that discretion be over the choice of material, limits on length and content, or how “fairly” they chose to treat public issues and public officials. None of these matters, the court unanimously found, may be regulated by the government without violating the First Amendment.
Social-media companies and other tech platforms find themselves in a very similar position today. Just as newspapers do, Facebook, Google and Twitter have the right to determine what kind of content they want on their platforms. This means they can choose whether and how to moderate users’ news feeds, search results and timelines consistent with their own views on, for example, what they consider to be hate speech or misinformation. There is no obligation for them to carry speech they don’t wish to carry, which is why DeSantis’ proposal is certain to be struck down.
It is also important to bear in mind that the tech companies are not state actors. They can’t be sued for “censorship” or “suppression.” Every single court that has been presented with a First Amendment lawsuit against a social-media company has dismissed the claim. For example, the 9th U.S. Circuit Court of Appeals rejected claims that Google infringed Prager University’s First Amendment rights by placing some of their videos in “Restricted Mode” on YouTube, thus reducing their reach and advertising revenue. Or as Justice Brett Kavanaugh wrote in the Supreme Court’s 2019 decision in Manhattan Community Access Corp. v. Halleck, the First Amendment “does not prohibit private abridgment of speech.”
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The good news for conservatives is that there is very little evidence that they are being silenced by the major social-media platforms. On the contrary, conservatives have been able to use them to broadcast views that would have struggled to find an audience when only legacy media was available. Indeed, content made by conservatives is consistently among the most shared on Facebook, YouTube and Twitter.
But just as claims of widespread bias against conservatives simply don’t stand up to scrutiny, nor should social-media companies be pressured by lawmakers or regulators to do more to moderate users’ speech, as some one the left would prefer. Threats to regulate social media platforms if they don’t do more to stamp out “misinformation” run into the same constitutional issues as the governor’s “de-platforming” bill. The First Amendment is not biased against any one political party.
Ben Sperry is associate director of legal research and R.J. Lehmann is editor-in-chief of the International Center for Law and Economics. Lehmann lives in St. Petersburg and Sperry in Silver Spring, Md.