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Freedom of Speech Fight: Florida & Texas v Tech Giants

On 24 May 2021, Florida restricted the ability of social media platforms (with more than 50 million users) to ‘deplatform’ politicians. More recently, on 10 September 2021, Texas followed suit by making it illegal for these platforms to ban users based on political viewpoints. This discussion commenced after prominent Republican politicians, such as Ron DeSantis, argued that Big Tech companies such as Twitter, Facebook and YouTube are ‘silencing conservative voices’ and are ‘looking more like Big Brother’.

One memorable example is Trump’s ban from Facebook and Twitter after a group of his supporters attacked the Capitol in January. This example appears to be somewhat of a juxtaposition since the First Amendment does not prohibit government interference with a speech that could be deemed as illegal and riot-inducing.

To enforce the Florida law, violators are to be fined $250,000 per day for state-wide office candidates and $25,000 per day for candidates of ‘other offices’. Therefore, the goal of this legislation is to prevent censorship and promote free speech. As John Snyder put it, ‘what this bill is about is sending a loud message to Silicon Valley that they are not the absolute arbiters of truth.’

In June, some parts of the Florida bill were suspended by a federal judge who ruled that it violated the First Amendment right to free speech as well as the federal Communications Decency Act (CDA). The argument is that social media platforms may be forced to host obscene, antisemitic, racist and hateful content. Carl Szabo stated that, ‘content moderation is crucial to an internet that is safe’. Indeed, 9 in 10 users do not believe that social media platforms are doing enough to police violent or anti-social behaviour online. The CDA specifies that a provider of an interactive computer service cannot be held liable for:

any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.

These laws were announced against a backdrop of nations caring more about clamping down on internet trolls, as discussed in the G7 Speakers’ Conference, and the creation of The Online Safety Bill following the Euro 2020 final’s racist online abuse. Are the Florida and Texas laws not anomalous from the general trend?

The exemption provided by Florida law has been deemed hypocritical. It states that companies that operate a ‘theme part or an entertainment complex’ will not be covered by this new legislation. Of course, this has been viewed as a means for Florida to protect one of its most precious domestic companies, Walt Disney Company and its Disney+ platform, as Walt Disney World is located in the state of Florida.

Another feature of scrutiny has been the fact that this law does not respect the right of private businesses to decide what sort of content they allow on their platforms. In fact, under the First Amendment, tech companies are generally free to decide what to publish without government interference. US District Judge Robert Hinkle states that: ‘Like prior First Amendment restrictions, this is an instance of burning the house to roast a pig’.

What is interesting about Texas following in Florida’s footsteps is that having such legislation is likely to create frustration amongst tech companies in a form of economic disincentives. This contrasts with Austin working hard in recent years to attract large tech companies.

Looking ahead, we are still awaiting the decision regarding the Florida law. It is still being blocked under a preliminary injunction. It is predicted that a similar fate is likely to apply regarding the Texas law. In fact, very recently, tech groups (representing Facebook and Twitter) have filed a lawsuit against Texas arguing that this law would violate the tech giants’ First Amendment rights.

Nevertheless, should these laws come into full effect, what will it mean for citizens and companies? Over time, could the laws be broadened to include smaller tech companies too? How about the legislation’s ban against deplatforming ‘politicians’ (under the Florida law) being extended to ‘all users’ (under the Texas law)? Is this broader scope a more worrisome cause for concern? Thus far it appears that Florida and Texas could be on a slippery slope in their attempts to restrict tech companies in an age where society is becoming more and more concerned about mitigating abuse online.

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Dilara Devin – Writer/Editor
A recent law graduate, with a passion for writing, reading and all things media. A lover of music and a growing interest in cooking.
LinkedIn: Dilara Devin


Freedom of Speech Fight: Florida & Texas v Tech Giants Reviewed by Dilara Devin on Tuesday, September 28, 2021 Rating: 5


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