Trump-appointed judge slams Florida’s attack on the First Amendment. That’s a relief | Editorial

Carl Juste/cjuste@miamiherald.com

In their frenzy to protect Donald Trump’s “free speech” rights to spread falsehoods on social media, Florida Gov. Ron DeSantis and Republicans appear to have misunderstood — or flat-out ignored — the First Amendment.

That beloved 45-word amendment to the U.S. Constitution gets its fair share of mentions in political speeches. But, in Florida, it sometimes applies only to those who toe the line of the party in power. Disney learned that the hard way when it got blacklisted for opposing a parental-rights bill critics call “Don’t say gay.”

One group that really gets under the governor’s skin are Silicon Valley’s “Big Tech” firms, the so-called “woke” folks who banned Trump from Twitter, Facebook and YouTube after the Jan. 6 attacks on the U.S. Capitol last year. Despite warnings that he would run afoul of the U.S. Constitution, DeSantis pushed a bill through the Legislature that, among other things, fined social-media companies for de-platforming political candidates in the run-up to an election. Disney, which at the time hadn’t yet fallen from grace with Republicans, earned a special exemption for its mobile platforms.

Harsh words

To no one’s surprise, the 11th U.S. Circuit Court of Appeals recently ruled that the law restricts tech companies’ First Amendment rights. In a decision ironically written by a Trump appointee, appellate Judge Kevin Newsom, the court dressed down Senate Bill 7072: “The government can’t tell a private person or entity what to say or how to say it.”

The court upheld most of a preliminary injunction imposed last year by U.S. District Judge Robert Hinkle, who had even harsher words, saying the tech crackdown is “riddled with imprecision and ambiguity.”

After the appeals-court ruling, a DeSantis spokesman posted on Twitter, “Our office is currently reviewing the options for appeal. We will continue to fight big tech censorship and protect the First Amendment rights of Floridians.”

How odd to bring up the First Amendment, given that it makes it clear that, “Congress shall make no law” abridging the freedom of speech (as well the exercise of religion, freedom of the press, the right to peaceably assemble and petition the government for a redress of grievances). In other words, the amendment is largely understood to restrict government regulations on speech — the very thing that DeSantis and lawmakers attempted to do.

Trump, in or out of elected office, has no “First Amendment right” to post whatever he wants on Twitter, just like he doesn’t have the right to force, for example, a newspaper to run a column he’s written. Such companies are privately owned and allowed to regulate the content that they feature. In fact, the U.S. Supreme Court in 1974 ruled the Miami Herald was not obligated to print a response by a state House candidate to an editorial, striking down the state’s “right-to-reply” law. Likewise, Judge Newson wrote social-media sites exercise “editorial judgment to curate the content that they display and disseminate.” That said, Elon Musk, who has made an offer to buy Twitter, says he would reverse the ban on Trump, as would be his right.

Big Tech is no saint

DeSantis isn’t entirely wrong about the need to hold tech companies accountable and about users’ lack of control over their personal information. The appellate court allowed parts of the Florida law to stand, some of which are reasonable. That was enough for Florida Attorney General Ashley Moody to try to spin in a tweet that the court’s decision as victory for the state. No quite. Still, for example, the law requires social-media platforms to publish their standards for determining how they censor, de-platform and “shadow ban” users. That’s overdue accountability we can support.

Tech’s slew of problematic business practices range from Facebook’s role in Russian attempts to influence the 2016 election to a whistle blower’s testimony to Congress about the company’s knowledge that its platforms harm young girls. Democrats and Republicans recognize such companies must be reined in, but they’re limited by a 1996 federal law known as Section 230 that shields online platform from lawsuits over what their users post. Yet congressional inaction is unacceptable.

If conservatives want to force social-media sites to allow users who violate their policies to remain on their platform, then they can’t cry foul if liberal states compel these companies to ban people spreading misinformation. The latter is actually what threatens our democracy and augments polarization, not the perceived “censorship” of conservative voices by “woke” tech corporations. A New York University study published last year found the claim that platforms target right-wing content for removal is “a falsehood with no reliable evidence to support it.”

Falsehood or not, DeSantis has helped galvanize the misguided belief that conservatives are the victims of “Big Tech oligarchs.” He can still claim credit for fighting the “good fight” even if he’s tilting at wind mills and losing his battle in court — at taxpayers’ expense.

Florida would be much better served by tech reforms that actually accomplish something and if the governor used his bully pulpit to push Congress, where this issue belongs, to act.