On Monday, Florida Gov. Ron DeSantis signed a “Big Tech Bill” that he says is designed to combat Orwellian censorship by companies such as Facebook, Twitter, and Google. The law requires companies to publicly disclose their moderation policies (something most, if not all, already do) and to stick to those policies consistently. If they don’t—or if users think they don’t—the companies can be sued for up to $100,000 per offense.
For the past several years, everyone from Sacha Baron Cohen to Elizabeth Warren to Donald Trump has advocated for strict new regulations on tech companies, with conservatives in particular charging these companies with censorship. Is DeSantis’s new law the big win for free speech that he says it is, or is it the very sort of rights violation the governor claims to be fighting?
It’s no secret that tech CEOs support the political left; Mark Zuckerberg called Silicon Valley “an extremely left-leaning place.” Senators Josh Hawley and Ted Cruz—along with such commentators as Dennis Prager, Ben Shapiro, Dave Rubin, Eric Weinstein, and Sam Harris—claim that the moderation practices of social-media companies demonstrate an unmistakable anti-conservative bias. And many, including DeSantis, say this bias is a form of censorship.
“If Big Tech censors enforce rules inconsistently, to discriminate in favor of the dominant Silicon Valley ideology,” says DeSantis, “they will now be held accountable.” He tweeted: “Florida’s Big Tech Bill gives every Floridian the power to fight back against deplatforming and allows any person to sue Big Tech companies for up to $100,000 in damages. Today, we level the playing field between celebrity and citizen on social media.”
Florida’s Big Tech Bill gives every Floridian the power to fight back against deplatforming and allows any person to sue Big Tech companies for up to $100,000 in damages. Today, we level the playing field between celebrity and citizen on social media. https://t.co/SOW6DZZT2K— Ron DeSantis (@GovRonDeSantis) May 24, 2021
There’s no denying that tech companies have tremendous power over what users see on their platforms. And given that, as the Pew Research Center reports, some 72 percent of Americans use some form of social media, platforms certainly have a hand in shaping debates. So it’s understandably maddening when these companies use their platforms to help one group push an agenda that many others consider destructive, promoting the content of some while “shadow-banning” others.
Thus, conservatives, seemingly the special target of “the Silicon Valley elites,” as DeSantis calls them, have long been attempting to fight back against this so-called “censorship.” In May 2019, President Trump tweeted: “I am continuing to monitor the censorship of AMERICAN CITIZENS on social media platforms. This is the United States of America — and we have what’s known as FREEDOM OF SPEECH! We are monitoring and watching, closely!!” Six weeks later, Senator Hawley introduced a bill to amend the Communications Decency Act, revoking the legal protection that keeps social media companies from being sued for things that users post. Hawley failed to change the federal law, but DeSantis has succeeded at the state level with a more targeted set of regulations.
Tech companies have yet to respond, so we don’t know whether they will play ball, oppose the law in court, or exit markets as they have in some countries, leaving users—including many businesses that rely on social media for advertising—without service. What is clear though, is that the law inserts government into the process of social-media moderation. Elected officials—beholden to their parties and constituents, always vying for re-election—will now have a hand in refereeing what is politically neutral and what is not. Is this a rational means of fighting “censorship,” or is the law itself an indirect means of instituting censorship? Further, are social media companies actually censoring people by moderating the use of company property as they see fit?
Suppose you use your time and resources to build an actual wall and then invite your neighbors to graffiti it as they wish. Some are talented like Banksy, creating interesting works of art, whereas others defile it with the equivalent of fifth-grade toilet humor. Most are somewhere in between. It’s your property, and you decide to paint over all of the crude stuff, plus some things you just don’t like. Could this properly be called censorship? Does it violate anyone’s right to free speech?
Definitely not. The reason the Founding Fathers wrote into the very first amendment that “Congress shall make no law . . . abridging the freedom of speech, or of the press” is because they understood that government has a monopoly on the legal use of force. If you don’t do what the government tells you, it can take your property or put you in jail. Censorship means restrictions on speech backed by force—that is, by government.
Private companies, on the other hand, may use their property however they see fit, but they cannot force you to do anything. As I’ve written elsewhere,
It’s not censorship if a Christian publisher rejects an atheist’s book, or if a left-leaning newspaper doesn’t hire (or fires) a freedom-loving columnist, or if a Romantic art gallery refuses to display a banana duct-taped to a wall, or if a social-media platform bans Alex Jones. The right to speak one’s mind is not a right to a book contract, a newspaper column, a gallery exhibit, a social-media platform, or to any product of another person’s effort. A person’s right to speak his mind is not a right to another person’s property or support. There can be no right that violates another person’s rights.
Love or hate their policies or politics, every successful tech entrepreneur started with a vision for providing value to users, then invested massive amounts of time and effort bringing that vision to life. They poured their life and property into their products and services, which they rightfully own and may use or moderate as they see fit.
If people dislike a company’s policies, they have plenty of options. They are free to stop dealing with that company, to convince others to boycott it with them, to try getting a job at that company where they can advocate change from within, or to start a competing company. What they cannot rightfully do is use government power to force others to supply them with a platform moderated according to their preferences.
DeSantis is not “leveling the playing field” as he says, but rather trying to use government power to constrain how companies use their property—and, in so doing, he’s carving a role for government in moderating speech. If we want a free and fair internet, we must respect the rights of tech companies, vote with our screen time—and reject DeSantis’s move toward a truly Orwellian world.