Florida’s history shows that DeSantis’ ‘tech transparency’ bill is doomed
In 1972, the Miami Herald ran a pair of editorials opposing Pat Tornillo’s bid to become a Florida state legislator. The pieces weren’t gentle. One asserted that “Czar Tornillo” had organized an illegal teachers’ strike. The other accused him of “kicking the public shin” and engaging in “shakedown statesmanship.”
Invoking a 1913 Florida law, Tornillo, then executive director of the Classroom Teachers Association, in Dade County, demanded that the Herald print his replies to its criticism. The paper refused, Tornillo sued and the case made its way to the Supreme Court. Striking the law down, Miami Herald Publishing Co. v. Tornillo (1974) holds that a publication — even one with a local monopoly — has a First Amendment right to editorial control.
Gov. Ron DeSantis would do well to read Tornillo closely before he signs the Transparency in Technology Act, a piece of legislation that assaults the First Amendment at every turn.
The bill would require large social-media websites to publish detailed standards for how they decide to ban or demote content, to enforce those standards “in a consistent manner” and to allow users to opt out of any form of content ranking that is not chronological.
The bill would also bar the websites from deplatforming any political candidate during an election.
If DeSantis signs it into law, the Act will almost certainly be struck down on First Amendment grounds. A court will conclude that the websites have editorial discretion, just as newspapers do. It will conclude that the Act impinges on that discretion by trying to compel private entities to carry speech, just as the 1913 Florida law did. And it will conclude that “bigness” does not diminish a private entity’s free-speech rights any more than does local monopoly power.
The case will not be close. Call it “Tornillo 2.0.”
The Act’s demand that websites carry politicians’ speech is, if anything, even more blatantly unconstitutional than its demand that they carry speech in general. The
U.S. Court of Appeals for the Fourth Circuit recently made this clear in a unanimous opinion written by prominent jurist (and Reagan appointee) J. Harvie Wilkinson III. Maryland tried to require websites to identify the purchasers of any political ads the sites run. Wilkinson called the law “a compendium of traditional First Amendment infirmities.”
Laws that regulate speech based on its content, Wilkinson noted, are presumptively invalid. So, too, he said, are laws that single out political speech, in particular, and laws that compel speech. By placing special restrictions on campaign ads and requiring websites to say who had purchased them, the Maryland law hit all three of these constitutional tripwires. By forcing websites to host politicians’ speech during elections, the Florida Act does so as well. The Maryland law could not overcome heightened scrutiny under the First Amendment, and the Florida Act is unlikely to, either.
It might seem as if the Florida legislation is profree speech. It is not. There is a lot of loose talk about how social-media websites “censor” people, but censorship is what occurs when the government silences you. To be subject to First Amendment restrictions, a private entity typically must engage in a traditional government function — something social-media companies plainly don’t do.
And although DeSantis and the Florida Legislature presumably believe that the Act will produce more total speech, they are, as politicians so often do, failing to think beyond the first stage. Forcing websites to give political candidates special treatment is likely, in the end, to result in less speech. The privileges that candidates must be afforded raise the cost of hosting them in the first place. “Faced with this headache,” wrote Wilkinson, in his decision striking down the Maryland law, “there is good reason to suspect many platforms would simply conclude: Why bother?”
Indeed, Twitter has dropped political ads. Twitter and others could drop political candidates, as well.
Much of the Act is dressed up as consumer protection. Requiring detailed disclosures of content-moderation policies, for instance, looks at first blush like an attempt to combat deceptive business practices. Who could oppose that?
But the consumer-protection angle is just a veneer. The Act’s true aim is clearly to dictate websites’ approach to speech. DeSantis tells us so. He describes the Act as “the most ambitious reforms yet proposed for combating political censorship and de-platforming.”
Laws that overstep in regulating speech are no less invalid, under the First Amendment, for doing so indirectly.
And the Act’s “consumer-protection” clauses do directly regulate speech. To make websites set forth their content-moderation standards in detail, and to apply them in a “consistent manner,” is to compel them to speak in a certain way.
Desantis and legislators don’t seem to understand how content moderation works. Websites that host others’ speech need flexibility in enforcing their standards so they can respond as new forms of harassment, hate speech and conspiracy theories arise.
A law that orders a website to have rigid, detailed, public rules, in effect, requires that the site spread abhorrent speech it would otherwise block, curtail or take down more quickly.
Pat Tornillo lost his
1972 election, and the Herald published an editorial celebrating his defeat. Tornillo submitted a reply — which the Herald printed in full.
The free and voluntary exchange of ideas often prevails, despite the worst efforts of aspiring speech regulators like “Czar DeSantis.”