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Guest Post by Swamp Patroller
Is Ron DeSantis a foe of free speech? The left-leaning factions of our society would have you believe so. They cite his recent ban on Critical Race Theory in schools, a decision that the disgraced far-left Southern Poverty Law Center (SPLC) lambasted as a breach of “academic freedom, freedom of expression and access to information under the First Amendment.” The SPLC went on to file a lawsuit against DeSantis for his restriction on LGBTQ studies for kids, accusing the move of “freezing speech and expression.”
Outcry from the SPLC, a body that appears to exist merely to financially ruin and silence dissenting voices, is a comic spectacle. After all, a school curriculum can accommodate only a certain range of topics, and it’s quite within the state’s remit to dictate how this precious time should be utilized.
Let’s imagine teachers nationwide decided to fill hours of their classes teaching kids Fortnite dances on TikTok. Would we cry foul over free speech violation if the state decided to demand a more productive use of class time? If we consider race-baiting to be more detrimental to young minds than TikTok dance trends, then DeSantis’ stringent stance deserves praise.
But let’s not get twisted in knots by the left’s dubious onslaught on the Florida governor’s free speech record. Fabricated anxieties about DeSantis’ commitment to free speech shouldn’t blind us to actual ones.
It’s a bummer to report that the Florida governor has fallen spectacularly short on the most pivotal free speech battlefield of our era — the struggle against Big Tech censorship. Even more disturbingly, if the whispers reaching my ears are anything to go by, he deliberately dropped the ball.
Early in 2021, DeSantis rolled out a bill he proclaimed would address the issue of tech censorship. Announced with grandeur, he boldly pledged to deliver everything conservatives were yearning for. The bill promised users the right to sue platforms that censored them, allowed them to opt out of shadow-banning algorithms, and block Silicon Valley’s prejudiced treatment of conservative candidates. With the fanfare of a televised address, DeSantis pledged to resolve these matters, eliciting cheers and applause from conservatives far and wide. Surely this governor, the embodiment of effectiveness, would triumph where Trump had fumbled.
Alas, the hopes of conservative voters were once again left in the dust. The draft bill, once published, clearly signaled to anyone acquainted with these affairs that it was a dead duck. To the untrained eye, it seemed to honor all of DeSantis’ promises, but it was laced with legally nebulous language and glaringly ignored existing American legal precedents, assuring its inevitable downfall in the courts.
A little explainer for the non-lawyers among us: a Governor’s signature on a bill doesn’t necessarily make it law. Especially with contentious subjects like tech regulation, new laws frequently face court challenges that determine their compatibility with existing law. To maximize their chances of survival, new laws should closely mirror existing legal precedents that have withstood legal scrutiny.
Serious laws aim to do this. However, frivolous ones, which are often passed merely to placate voters that “something is being done,” do not. The Florida tech bill, sadly, falls into the latter category.
This turn of events wasn’t written in the stars. Despite the protestations of tech lobbyists who argue otherwise, there’s a pretty hefty stack of legal precedents in Uncle Sam’s backyard allowing states to tell private enterprises they can’t discriminate based on viewpoints — even those that make you want to wash your ears out with soap.
Many states, including Democrat strongholds like California, have passed laws that achieve this, using civil rights law as a model. There’s also public accommodation law, another common civil rights instrument, which is used to prevent discrimination of all kinds. Finally, there’s the law of common carriage, whereby the government forces businesses it designates common carriers to make their services available to all citizens on a non-discriminatory basis.
Any legislator possessing a modicum of competence would have consulted these precedents whilst crafting a bill aimed at curtailing tech censorship. Do not merely accept my word for it: in a Supreme Court opinion published at the start of 2021 – well before Florida’s draft bill was released – Clarence Thomas practically beseeched legislators to invoke one of these legal doctrines. It is a rarity for a Supreme Court justice to proffer specific policy recommendations to lawmakers, yet on this crucial matter, Thomas did just that.
Somehow, Florida Republicans failed to heed his counsel, resulting in a bill that is doomed to fail in the courts and has a high risk of harming other legislative efforts to tackle big tech censorship. It provides tech companies with fresh legal precedent to invoke in future cases. “Look!” the tech companies can now say. “Florida’s law banning tech censorship was ruled unconstitutional, so this other one should be too!”
A little icing on the cake: this bill undermines DeSantis’ claim to be the sworn enemy of Disney and its wokeness. The governor signed the bill into law, knowing full well that Florida legislators had carved out a specific exemption for Disney+, the entertainment company’s online streaming platform.
Not that Disney needs an exemption from such a lopsided bill. When Florida’s law crashes and burns in the courts, which it’s bound to, you can bet your last dime that tech giants will gleefully brandish this argument like a new iPhone at every subsequent legal showdown, whether it’s against Texas’s sturdier tech censorship law (which wisely borrowed from the ‘common carriage’ precedent) or any federal effort instigated by a potential Trump administration redux.
Staring down the barrel of a screw-up of this scale, there’s a question we typically pose: is this a masterpiece of malevolence, or just a masterclass in bungling?
Let there be no question: it was malevolence. Florida Republicans knew what was wrong with the bill. They knew how to fix it. They knew that by not fixing it, it could harm other efforts to challenge Big Tech censorship in the courts. And they passed it anyway.
They didn’t simply ignore the published opinion of Clarence Thomas. A multitude of experts in the realm of tech law extended their wisdom to both team DeSantis and Florida Republicans, and explained what was required to make the bill stand up in court.
Among their number were people who had painstakingly assembled a legal pathway to regulate the tech giants under Trump, only to be denied the chance to implement it by the 2020 election result. Had Florida Republicans asked, these people would have drafted the law themselves along the lines that Justice Thomas suggested. Their advice was similarly ignored.
Florida’s tech law disaster can’t be pinned on incompetence. DeSantis and his Florida GOP comrades had all the advice and info they required to craft a sturdy bill that could stand its ground in a courtroom brawl. They even had a Supreme Court justice’s opinion laid out for them like a roadmap, showing them exactly which route to take. No, this failure wasn’t an accident. It was built into the blueprint.
Policy experts who approached team DeSantis to courteously inquire about the perplexing inadequacies of his highly touted tech bill all relayed a similar narrative: amidst feeble attempts to assuage them that the bill would somehow prevail, there lurked an underlying sentiment that private enterprises ought to be granted some degree of latitude to ban anti-Semites and neo-Nazis.
The kicker is that if you allow companies to boot out anti-Semites, neo-Nazis, or any variety of detestable types, you’re giving companies the green light to blacklist any political viewpoint they don’t jive with. Law doesn’t do grey areas or half-assed measures. Either everyone gets free speech — even the folks with views that turn your stomach — or nobody does.
It’s unclear if DeSantis really believes in the bedrock American principle of free-speech. While DeSantis’ pro-Israel stance is commendable in general, the optics of DeSantis taking a trip to Israel to sign what amounts to an easily politically abused hate speech law in Florida are not ideal. Similarly, while BDS is a detestable left-wing movement embraced by some of the worst figures in American politics, DeSantis’ anti-BDS law seems questionable from a First Amendment perspective.
When it comes to free speech, there’s no arena bigger or more critical than tech regulation, and it’s there that DeSantis’ jitters about inadvertently preventing censorship of largely irrelevant internet neo-Nazis led to a deeply unfortunate policy train-wreck.
Swamp Patroller is a lawyer and technology policy expert based in northern Virginia.