Big Tech’s bans aren’t great, but they should definitely be legal

The Sunshine State got a little less free last week when Gov. Ron DeSantis signed Senate Bill 7072, colloquially referred to as the “Big Tech Crackdown,” into law. It’s just the latest attack on free speech online disguised as a protection for free speech. The law states that social media platforms that host the pages of politicians cannot remove them from the platform. In other words, the law bans “deplatforming” of politicians.

There are two major issues with Desantis’ logic here.

First, it may conflict with preestablished laws set by Section 230 of the Communications Decency Act, which protects companies that engage in “goodfaith” moderating of their content, as well as the First Amendment of the Constitution. The law bans the banning of politicians — a weird legal double negative, but a crucial one all the same. This means that the government of Florida is banning speech by preventing companies from removing politicians that violate their terms of service. It’s a blatant First Amendment violation that legal scholars are saying will be struck down in court and subsumes the “good-faith” moderating of Section 230. The state of Florida is already receiving a suit from several trade associations citing first amendment violations.

What’s more, the law is rife with exemptions for those that have the political capital to lobby. Of course, it wouldn’t be Florida politics without Disney getting a waiver. The exemption was put in to prevent an interruption of the Disney+ streaming service, which legislators cited could be negatively impacted by the law. But even saying so recognizes that the law is harmful to companies to begin with! Therein lies the root issue: Laws have unintended consequences that many politicians rarely imagine. In this case, the politicians already knew what was coming, which is why they carved exemptions for certain companies.

The reason Florida pulled the trigger on enacting this law reflects a deeper issue. Americans, of course, are increasingly frustrated with Big Tech removing users for violating the terms of agreement. That makes sense — social media companies don’t always communicate these terms well. Facebook, for example, drew ire from its own Oversight Board for not giving an adequate explanation for the indefinite removal of President Trump. It also defended Facebook’s right to punish the president for violating its terms of service. But the decision by the Oversight Board is what we should be taking forward and encouraging other social media companies to follow. And Florida’s law upsets this private-sector solution that, despite its issues and limitations, is a self-regulating force for Facebook and can be a model for other social media companies.

The bans on social media users aren’t great, but we should protect a company’s right to do it, because the alternative is no good. Americans will not be happy with regulation via government — it’d be rife with favoritism and unintended consequences. We’ve got a cautionary tale from Europe already, where tech companies are much more heavily regulated. The EU’s General Data Protection Regulation, intended to protect consumers’ data from being used maliciously, has done very little good. What has it done? Well, prevented companies from sharing data on cancer research to institutions outside the EU, among many other similar, dire consequences.

How do we balance protecting First Amendment rights while allowing technology to develop? Well, it’s nuanced, and nuance is never popular. Congress and the courts take on cases of “when is big tech too big” assuming that if they have the power to censor speech on their platforms, they will. No nuance needed — a blanket “simple” reform. But if blanket reform is what Florida is going for, it should try a different one out, one that will work much better in the long run: allowing all tech companies to control the content on their websites, even if that means they censor some users.

When writing the biography of the French philosopher Voltaire, author Evelyne Hall wrote in one sentence a summation of his beliefs, “I disapprove of what you say, but I will defend to the death your right to say it.” That’s the approach DeSantis should be taking with Big Tech, because the precedent he’s setting is a bad one. But I’m not holding my breath for him to change his mind.

By Luke Ashton