Florida Gets A 1st Amendment Lesson

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It’s been a busy week for federal judges and tech. On Wednesday, a federal judge temporarily squashed a Florida law that would punish tech companies for kicking political candidates off their platforms, even for violating platform rules.

From U.S. District Judge Robert Hinkle’s injunction:

First, the State has asserted it is on the side of the First Amendment; the plaintiffs are not. It is perhaps a nice sound bite. But the assertion is wholly at odds with accepted constitutional principles. The First Amendment says “Congress” shall make no law abridging the freedom of speech or of the press. The Fourteenth Amendment extended this prohibition to state and local governments. The First Amendment does not restrict the rights of private entities not performing traditional, exclusive public functions.

That’s quite the smackdown from this judge, and it addresses the central problem with Florida’s approach: It’s based on the average fourth grader’s grasp of the First Amendment, which can be summed up with: “It’s a free country, I can say what I want.”

That’s not how the First Amendment works. The First Amendment actually protects individuals and private businesses from government telling them what they can and can’t say. Arguably, Florida is trying to control the speech of private companies through this law.

The question is, have social media platforms become such a powerful mode of communication that they should be subject to different rules? to a government takeover of their terms of service? Florida’s going to appeal the decision, so we'll have to stay tuned.

Florida Governor Ron DeSantis’s office issued a statement:

“We are disappointed by Judge Hinkle’s ruling and disagree with his determination that the U.S. Constitution protects Big Tech’s censorship of certain individuals and content over others.”

All of this is riffing on a familiar theme: politicians and regulators are worried that technology companies have gotten so powerful that they have too much influence over things government is used to controlling.

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