Florida's Affront To The First Amendment (Part 2)
[Program Note: The first part of this article, which gave a historical overview of the First Amendment, ran yesterday. The following is the conclusion.]
We now have to jump forward to what the state of Florida is attempting to do, with their new law. Florida is run by Republicans and its governor is widely reported to be considering an eventual presidential run. He's always been a big supporter of Donald Trump and so the state Republicans have taken up the insistence on the right that somehow social media platforms banning conservatives is some sort of tyrannical outrage that must be stopped by governmental intervention. In this one area -- social media and Big Tech in general -- Republicans are for all the regulations they can impose, which obviously runs counter to their longstanding drive to remove as many regulations on as many corporations as possible. So far, though, Republicans don't seem to have any ideological opposition to more and more regulations in this one area, and it's doubtful they ever will.
Here is a quick rundown of what the new law is supposed to do:
Florida Gov. Ron DeSantis signed a bill Monday that aims to punish social media companies for their moderation decisions, a move that Silicon Valley immediately criticized and likely sets the stage for potential legal challenges.
The legislation would bar Internet companies from suspending political candidates in the run-up to elections. It also would also make it easier for the Florida state attorney general and individuals to bring lawsuits when they think the tech companies have acted unfairly.
. . .
"Today, Floridians are being guaranteed protection against the Silicon Valley power grab on speech, thought, and content," DeSantis said in a tweet. "We the people are standing up to tech totalitarianism with the signing of Florida's Big Tech Bill."
DeSantis first announced his support for the bill shortly after the tech companies' suspended Trump, but the legislation, had it been effect, would not have affected the tech companies since Trump at the time was not an active candidate for office. The law creates fines of $250,000 per day for banning candidates for statewide office, and $25,000 for candidates for local office.
The law also includes provisions to protect people who aren't running for office, allowing them to bring lawsuits against the companies if they think they're being inconsistent about content decisions.
DeSantis signed the bill at an event at Florida International University in Miami, where he spoke from a lectern with the sign that said "Stop Big Tech Censorship."
Two things about this are just downright hilarious. The first is that DeSantis communicated his rage at "tech totalitarianism" in a tweet. The second is his over-the-top language. The "Silicon Valley power grab" he speaks of is merely tech companies controlling and policing their own private social media platforms. To put it another way: they created and already own the "power" so there really is nothing for them to "grab" that they don't already possess. They created this power out of nothing, and hence they control it. They all have rules for what "speech, thought, and content" are allowed on their platforms, and they are free to enforce these rules any way they see fit, including banning people from their platforms altogether. There is no "censorship" or "totalitarianism" involved because there is no government involved. Google is not a government. They can't arrest anyone. They can't wage war on another country. Facebook has no army or police or firefighters. Twitter doesn't dictate who gets to run in elections, and none of these companies has a vote in any election at all.
Censorship can only happen when a government forbids someone's speech. They make it illegal to have certain viewpoints, and they enforce it. That is censorship, and that is precisely what the First Amendment protects us all from: governmental encroachment on free speech.
Twitter banning someone is nothing more than a corporation deciding that they don't want that person associated with their brand in any way, because they see it as detrimental to every corporation's true goal: making money. It's their brand, so they and they alone get to say who is and is not allowed to associate with it. And the freedom of association (which naturally includes the freedom to exclude anyone from your chosen association) is another First Amendment right. If Twitter doesn't want to associate with Donald Trump, so they ban him from their private social media platform, then that's that. It's their platform and they get to make the rules, period.
Say for the sake of argument that conservatives were right. Say that a Silicon Valley social media site decided not to allow any conservative voices on their platform. Why should government care? It's a private company, they can define who gets to use it any way they wish. Discrimination over political viewpoint is entirely legal in this case. There is absolutely nothing stopping conservatives from forming their own social media company and competing in the marketplace. And the conservative site could ban liberals, too.
Florida, however, is arguing that the companies should essentially be forced to allow everyone in, because conservatives desperately want sites like Twitter and Facebook to be considered public venues. Government-owned, in other words. But they just aren't.
Look at it this way -- say you owned an amusement theme park. Say that on the grounds of your theme park is a music hall. You own the land, you own the building, all the employees who work there are paid by you, and you control the venue in every legal way imaginable. It is yours.
You decide that you will only allow musical acts to perform there. No jugglers, no mimes, no comedians, no drama presentations, no ballet... just music. You further decide that you only want to have "folksy Americana" music -- things like barbershop quartets, Western cowboy music, bluegrass, and other similar squeaky-clean acts. You make these policies based on what you want to present to your customers: a "wholesome family-oriented experience."
Now suppose a punk rock or a gangsta rap band applies to your headquarters to put on a show at your music hall. You refuse them, on the grounds that their music isn't allowed in your music hall. You point out to them that their lyrics necessitate a parental warning label and are downright obscene, and that even if you did allow their style of music, you certainly wouldn't allow that.
You would have every legal right to do so. It is your music hall. It is not a municipal arena, owned by a city. It is not a public venue, in other words. It's just not. It's a private venue on private land. It is in no way "the public square."
What Florida wants to do is to force you to host any music act that demands a show, no matter what music they play, and no matter what your opinion about it is. In your music hall. On your property. Florida would also demand that any other act also be allowed to perform -- including a strip show, since that is legal in the state.
Think this is exaggeration? Here is how a Silicon Valley tech group put it:
Trade groups representing the tech industry argued that the Florida law could make it harder for tech companies to take down potentially harmful speech from their services.
"If this law could somehow be enforced, it would allow lawful but awful user posts including pornography, violence and hate speech that will make it harder for families to safely navigate online," said Carl Szabo, vice president and general counsel at NetChoice, a trade association whose members include Facebook, Google and Twitter.
What Republicans want to do is have the government essentially "take" the social media space, by declaring it a public venue. Public venues must abide by free speech laws (a municipal arena can't ban a certain type of music, because that would be discriminatory), therefore the government would force the companies to allow objectionable people to have their say.
But it's just not a public venue. Facebook and Twitter have invested billions of dollars in creating and growing their platform. They do this over the internet -- which is not owned or operated by the government either. There just is no public space at all, here -- it is all privately held.
Conservatives seem to think that because Facebook and Twitter have risen to dominance in their markets that this somehow transforms them into the public airwaves. But that's not true at all. Sure, being banned from Twitter and Facebook is going to make it harder for, say, a white supremacist neo-Nazi political candidate to run his or her campaign, but that's just the way it goes. Just as nobody has an unalienable right to perform in a Disney music hall, and nobody has a right to be on Twitter. There is no civil rights question at all, here. Twitter could decide tomorrow that their corporate brand was going to be "a mouthpiece for the Democratic Party" and only allow registered Democrats to post on it, and they would be well within their rights to do so. If Republicans don't like it, then they'd be free to create their own Republican-only social media site, to balance things out.
The Founding Fathers knew this -- that's why they added freedom of the press to the First Amendment in the first place. Freedom of the press, back then, meant the freedom to be absolutely partisan -- newspapers completely loyal to and biased towards one political party or another. The "Blair House," which is now used to house visiting foreign diplomats and other dignitaries, is right across from the White House for a reason. Francis Preston Blair, who was the editor of the fiercely pro-administration Washington Globe, owned the house so he could easily walk over and confer with President Andrew Jackson, which he did on a regular basis (Blair was a member of Jackson's "Kitchen Cabinet" of unofficial presidential advisors). The Globe was far more instrumental in the partisan politics of the day than Fox News is today to the Republicans. It was considered the official mouthpiece of Jackson, in fact.
The Bill of Rights was partially written to protect such partisanship in private media companies. Congress could make no law abridging the freedom of the press -- which allowed them to be as partisan as they wanted to be. Congress could make no law abridging the freedom of speech to anyone -- but the newspaper editors and owners were certainly free to accept or reject anyone's writings based on their own partisan leanings. This is also covered by the freedom of assembly, since anyone (including newspaper owners and editors) were free to associate with or not associate with anyone they chose. That is what the First Amendment guarantees.
And that is precisely what the Florida law runs counter to. Florida is trying to use the power of the government to force private companies to associate with people those companies do not want to. The companies are not governments, they are not required to offer free speech to all. Florida wants to change that so that their state government dictates to the companies who will be allowed to play in that music hall. That flips the First Amendment on its head.
I used the example of a theme park's music hall for a reason, which is what I'm going to end on. Because the Florida law was amended at the last minute to insert a loophole. No company's presence on the internet will be policed or covered by the law as long as they own a big enough theme park in Florida. In other words, Florida is too chicken to take on Disney (and their formidable legal department). So Disney and any other company that has a Florida theme park bigger than 25 acres will be exempt. Convenient, that.
More than anything else, this shows the unserious nature of this new law. The law is a nothing more than political talking point DeSantis can use later on, when he runs for president. The courts will certainly throw it out as being laughably unconstitutional, but DeSantis won't care because he won't talk about that part of it on the campaign trail, instead he'll issue forth a lot of sound and fury about "taking on and fighting Big Tech," much to the crowd's delight. Exempting Disney shows the Florida Republicans are merely making a partisan point here, and aren't fighting for any kind of moral principle at all.
The states don't even really have the power to regulate any of this at all. There's already a federal law that covers internet companies, and it alone would negate the new Florida law. There is a push to rewrite this law (known as "Section 230") coming from both sides of the political aisle, but the two sides vastly disagree on how the law should be changed, so it's not like it's a bipartisan effort or anything. But until Section 230 is rewritten, all these state laws are nothing more than political grandstanding -- nothing more than Republican governors and statehouses currying favor with Donald Trump. And stomping all over the Constitution to do so. Which, knowing Trump, fits perfectly.
-- Chris Weigant
Follow Chris on Twitter: @ChrisWeigant
well that just takes the cake. florida might ban certain types of pie, and then where would we be? if only you would consider pie for a change, life would be just peachy. but you're too chicken to promote pie as a possible alternative.
get edible.
JL
I get what you're saying, and I tend to agree - confirmation bias being what it is, and my disliking the Republicans and all.
But I admit I'm a little lost in the midst of your absolute insistence that the private company can do what it wants with its own, because its space is not a 'public space'. As you admit, if it were a public space, like for instance a restaurant or a store or a bakery, it would not be allowed to say, "we only serve white people" or "we only bake cakes for straight couples".
What's the difference? You don't really explain. You say it's just NOT a public space because Facebook spent millions building its site - kind of like the racist restauranteur spent thousands building his little bigoted business.
You say conservatives, or fascists, or child pornographers have a right to make their own Facebook - but that's not remotely possible in real life, as you know. And I don't want those people on my social media newsfeed either. But I'd like a much clearer explanation of why I have the right to not confront those people on my screen every night, but don't have the right to exclude racial or other protected groups from my shopping or dining experiences. "Free speech" and "private property / enterprise" doesn't seem to cut it, as far as I can tell, because those phrases just didn't work any more regarding race (and the other now-protected groups) after about 1965.
I know the history of racial (and other) civil rights discriminations is not exactly the history of digital forums and online free speech. But I am suspicious of declarations that the two have nothing - nothing, you hear? - in common.
That isn't even the most ridiculous and unconstitutional law of the week. First prize would have to go to Alabama's law allowing the teaching of yoga in public schools, under the condition that students and teachers must not say "om" or "namaste" and must use English names for all poses. Also, no meditation is allowed. Next they'll make the same requirement about teaching music, and "adagio doloroso" will have to be translated as "mournfully relaxed."
Andygaus-4
None of these silly euphemisms will last any longer than Victory Cabbage did.
[2] John M from Ct. wrote:
"But I admit I'm a little lost in the midst of your absolute insistence that the private company can do what it wants with its own, because its space is not a 'public space'. As you admit, if it were a public space, like for instance a restaurant or a store or a bakery, it would not be allowed to say, "we only serve white people" or "we only bake cakes for straight couples".
What's the difference? You don't really explain. You say it's just NOT a public space because Facebook spent millions building its site - kind of like the racist restauranteur spent thousands building his little bigoted business."
I'll take a stab at it. The differences are:
1) Business services provided to the general public that include physical goods, i.e., food services (cakes, restaurants), clothing (department stores), barbershops and nail salons, amusement parks etc. are specifically covered by non discrimination civil rights laws, under the concept of public accommodation (this covers hotels and motels too) (but not doctors, who can refuse anybody any treatment for whatever reason except in life threatening circumstances i.e. emergency aid) while internet companies who provide a more ephemeral service, a non physical space for something non tangible... the exchange of ideas, concepts etc. are not.
2) Internet companies that are forums are more akin to newspapers and other forms of media, that include both reporting on and the advertising of events etc. and therefore are covered by the constitutional right of free speech, freedom of association, intellectual copyright laws, etc. They are more like a motorcycle club, or the Shriners, or Free Masons, or the Rotary Club, etc. and less like a sports team for example.
It's the difference between a purely social grouping or private organization on the one hand, and something that has gone completely commercially public on the other. Where do you draw the line is always going to be a source of contention. With the constitution specifically carving out the single exception of one private business...namely the free press. Now how you define what falls under the term press is another matter.
You have to look at the context of history also. Back in the 1950's, a black man could drive his car from Texas to Georgia and not fine one hotel he could sleep in overnight or one establishment where he could use the bathroom. This is what civil rights laws regarding discrimination in public accommodations were meant to address.
A man denied the use of a bathroom or motel can't very well create his own out of thin air, other than using the roadside bush and getting arrested for public indecency or vagrancy.
But a man denied getting something published in a newspaper or on the radio can always print and distribute his own flyer or hold a sign on the side of the road, etc.
So... Interestingly while people have singled out Disney as the main receiver of the "amusement park" clause, it has not really been mentioned that NBC/Universal also are protected (Universal Studios Theme park in Orlando...)
If one looks at the structure of the deals that consolidated...I mean created... these media monoliths, one will find that for around 7 more years Fox Corp., Warner Media and Comcast receive protection under this clause due to how ownership/divestiture for various pieces of the companies will happen.
ListenWhenYouHear
Russ! I would have answered you sooner, but I'm dealing with a 90-year-old in-law with newly diagnosed pancreatic cancer (massive metastasis... death sentence, basically).
Y'all take care of yourselves. :)
http://www.chrisweigant.com/2021/05/21/friday-talking-points-just-not-a-good-bad-guy/#comment-177902
nypoet22
JL
I guess you never know when something you posted could make a huge difference to somebody, but I listened along with y'all on Sunday (got behind... as usual), and this is literally the first chance I have had to answer anybody. I did want to say I needed those Muppets, and I had forgotten how awesome "The Wiz" was... and you saved my really horrible day.
EM's and everybody else's songs were (are always/usually) great too... only thing missing:
https://www.youtube.com/watch?v=I_2D8Eo15wE
[9]
Dude. Why is CW obligated to flog a truly bad, simplistic solves nothing One Demand? You've got all the freedom (too much, IMO) down here in the Comments section to flog your truly bad, simplistic solves nothing One Demand...yourself!
BTW, how's that going? From the looks of it here in Weigantia, not so hot, eh?,
@cw,
i'd really like to see a column that reconciles the views in the current post with your views on knight institute v. trump, where the president's twitter feed WAS considered by the SCOTUS to be a public forum, with first amendment protections afforded to the posters.
JL
Ah, come on MtnCaddy OD is going great! It gives Don something to do without him having to do any real work.
Don suffers from the Michale problem. If he had his own blog, no one would read it...
as a point of reference, here's an article on the topic from the ABA journal.
@bashi,
i think you're being unnecessarily hard on michale. he has plenty of blogs to choose from, and i'm sure he's currently posting on some of them right now. plus he posts on a wide variety of topics, some of which actually contain reasoned discourse. plus he likes pie.
JL
@kick,
my pleasure. the wiz and the muppet movie both really do stand the test of time. what really amazes me about the wiz is how even forty-something years later the brilliance of the whole production shines through, from the choreography to the score to the vocals to even the piles of trash on the yellow brick sidewalk. it's all so intentional and complete in a way one wouldn't expect of a film from that era.
JL
Censorship can only happen when a government forbids someone's speech.
No. Censorship happens when anyone with the power to forbid someone's speech does so. Forbidding speech is bad because it's an abuse of power. Not because there are elections directing the power at least somewhat in line with the opinions of a plurality of voters, and not because there are checks and balances providing institutional limitations on the abuse of power.
I don't know how to argue for this. It's too self-evident. Any argument would be backward, from less-obvious premises to a more-obvious conclusion.
Can you argue that checks and balances are what make this particular abuse of power bad? Or voting? Or some other feature, whatever you consider to be the essential difference between government and other aggregations of power?
John M on [5] replying to my [2]
Thanks for the breakdown and analysis of some differences between discrimination law and free speech law for corporations! I guess I am wondering if your 2), about how internet forums are 'akin' to newspapers and so come under 1st amendment press protection, is really going to hold water much longer; ditto on the idea that being banned from a million-audience forum site doesn't abridge your speech because you still have the option to stand by a stop sign with some slogans painted on cardboard.
It seems to me, without much actual expertise on my part, that these forums are approaching the status of common carrier, performing a public square function whose provision by a for-profit private corporation merits just as much government regulation as Congress feels it needs.
I know that's not the law right now - but I don't feel sure it won't be the law going forward. That's why I drew the connection to 19th century railroads: not because the internet is a railroad, but because railroad technology was so far beyond the previous capacities of ground transport that everyone recognized over a period of time that existing laws just didn't apply in useful ways. And the laws changed.
It is your music hall. It is not a municipal arena, owned by a city. It is not a public venue, in other words.
https://www.lawinsider.com/dictionary/public-entertainment-venue
@dan,
did you by any chance read that ABA article? it goes into some detail about what is and is not considered a public square.
JL
dsws [18] on CW's point that a private music hall is not compelled to let anyone on stage who wants to present their act to the public, because it's "private".
You replied just now, citing the law that says such a hall is, in fact, a public venue. The law says it's public, contrary to CW's point, because the public assembles there for entertainment. But the entertainment, of course, is that which is presented by the private management. Just because it's a public venue, that doesn't mean management can be compelled (in Chris' example) to let the rockers on stage, which is guaranteed to cause their desired audience to run for the exits and never come back.
And here's where things break down a bit, in terms of legal precedent, and free speech, and private venues, etc.
In social media, the all-American public audience and the obnoxious punk rock band trying to get on stage at a Disney attraction are the SAME entity. There is no stage - booked by management. There is no floor or seating - occupied by the public looking to be entertained by management's choice of acts. Everyone is performing for everyone in social media. The very act of watching another generates money for the management, without concern for who is watching and who is being watched at any point.
To shut down an act is to shut down the audience, because the audience is the act. To shut down the audience is to shut down the act, ditto.
Naturally Facebook and the rest believe they have to set limits regarding the various acts' attractiveness and ugly behavior (i.e. speech), in order to retain a larger and more profitable audience than the ones who are attracted to sites that specialize in alienation or hate or vitriol. But equally naturally, Facebook doesn't want anyone else to tell them what those limits are, because every restriction of the acts - i.e. the audiences - is a potential money-loser or winner by their own calculations, and an outside entity like government just might get the balance wrong.
Now, is this a public venue, or not? Does the government have an interest based on public needs? I don't think this sounds like any music hall or any other publicly open, but privately owned, venue that I ever heard of, or that the law has ever heard of. Neither Chris' example, nor the law you've cited, seems to apply very well to this entirely new phenomenon in the history of freedom of speech, and freedom of the press.
whoa john, that's deep.
[19]
did you by any chance read that ABA article?
I hadn't. Checking it out now. Thank you for bringing it to my attention.
Just because it's a public venue, that doesn't mean management can be compelled (in Chris' example) to let the rockers on stage,
Indeed. A public venue is more like a public accommodation, than like public policy or a public park. It's a private entity that does business with the public. The federal government can regulate public accommodations under the commerce clause. But until such regulation is enacted, the starting assumption is that the owners can do as they please.
On that point, I was quibbling with terminology, rather than disagreeing directly. The management of a public venue can exclude audience members, for pretty much any reason other than unlawful discrimination. And they can exclude performers/speakers on the basis of viewpoint. There are assumed to be plenty of other venues.
On thing missing in this discussion is the Terms of Service. Officially, Trump got banned from twitter for breaking the TOS. "free speech" is being banned on a second to second basis on these services in the form of spam filters which break the TOS. I think a better example would be a bookstore with a sign that people are reading inside and therefore the owner reserves the right to kick anyone out for yelling. There is no discrimination on who can come in and look at and/or buy books but the second you yell, you are out.
Kick,
I am so sorry to hear about your in-laws’ cancer. My thoughts are with you, my friend!
Sending ya much love!
R