Clinton-Appointed Judge Blocks DeSantis On Penalizing Big Tech For Censorship

On Wednesday, a federal judge appointed by former President Bill Clinton issued a preliminary injunction blocking the Florida law championed by GOP governor Ron DeSantis that would prohibit “a social media platform from willfully deplatforming a candidate.” DeSantis signed the bill in late May, remarking:

When the founding fathers established our country and crafted the Constitution, they were very concerned with threats to liberty primarily emanating from government power, and they believed concentrations of power would inevitably lead to people’s liberties being curtailed. So they designed a constitution that had separation of powers, checks and balances, and it was designed to create a government that could do the things that you needed a government to do, but did it in a way that was as safe as possible and had as many different checks along the way and balances so that you didn’t have an accumulation of power in one part of the government. And I think that they were very smart about that and, obviously, we’ve seen other societies that have not had those protections, the results have inevitably been disastrous.

We are now, though, in a situation where we have things that were probably unforeseen by the founding fathers. Whereas they established a First Amendment to protect people’s freedom of speech, religion, and association from government overreach, we now have a situation in which some of these massive, massive companies in Silicon Valley are exerting a power over our population that really has no precedent in American history, and I would suggest monopolies today, these big tech monopolies are exerting way more influence over our society than the monopolies of the early 20th century which led to antitrust and a lot of trust busting. So we’re in a situation here where these platforms have become our public square.

Floridians and other Americans go on these platforms to be able to share ideas. Heck, you go back to the beginning of these platforms, they actually were very liberating because you had corporate media, those legacy outlets, that many Americans grew to distrust and rightfully so. They no longer had the monopoly on information. You could actually go around the legacy media, share information on these platforms and that was very, very positive for millions and millions of Americans. Actually, it was a little too positive and the powers that be didn’t like that, and so I think what we’ve seen in recent years is a shift away from internet platforms, social media platforms from really being liberating forces to now being enforcers of orthodoxy. And so their primary mission, or one of their primary missions, seems to be suppressing ideas that are either inconvenient to the narrative or that they personally disagree with.

DeSantis’s office put out a news release which stated, in part, “The Attorney General of Florida can bring action against technology companies that violate this law, under Florida’s Unfair and Deceptive Trade Practices Act. If social media platforms are found to have violated antitrust law, they will be restricted from contracting with any public entity. That ‘antitrust violator’ blacklist imposes real consequences for Big Tech oligopolies’ bottom line.”

The law states:

 Social media platforms that unfairly censor, shadowban, deplatform, or apply post-prioritization algorithms to Florida candidates, Florida users, or Florida residents are not acting in good faith. … Social media platforms have unfairly censored, shadow banned, deplatformed, and applied post-prioritization algorithms to Floridians. 

Further, the law states: 

A social media platform may not willfully deplatform a candidate for office who is known by the social media platform to be a candidate, beginning on the date of qualification and ending on the date of the election or the date the candidate ceases to be a candidate. A social media platform must provide each user a method by which the user may be identified as a qualified candidate and which provides sufficient information to allow the social media platform to confirm the user’s qualification by reviewing the website of the Division of Elections or the website of the local supervisor of elections.  Upon a finding of a violation of subsection (2) by the Florida Elections Commission, in addition to the remedies provided in ss. 106.265 and 106.27, the social media platform may be fined $250,000 per day for a candidate for statewide office and $25,000 per day for a candidate for other offices. 

In his injunction, U.S. District Judge Robert Hinkle argued that banning “de-platforming” likely violated the free speech rights of the tech companies, writing, “The legislation compels providers to host speech that violates their standards — speech they otherwise would not host — and forbids providers from speaking as they otherwise would.”

He added sarcastically, “Like prior First Amendment restrictions, this is an instance of burning the house to roast a pig. … Balancing the exchange of ideas among private speakers is not a legitimate governmental interest. And even aside from the actual motivation for this legislation, it is plainly content-based and subject to strict scrutiny,” NBC News reported.

Vis-a-vis reining in social media companies, Supreme Court Justice Clarence Thomas has written: “Our legal system and its British predecessor have long subjected certain businesses, known as common carriers, to special regulations, including a general requirement to serve all comers. … this Court long ago suggested that regulations like those placed on common carriers may be justified, even for industries not historically recognized as common carriers, when ‘a business, by circumstances and its nature, . . . rise[s] from private to be of public concern.’”

Thomas continued:

But whatever may be said of other industries, there is clear historical precedent for regulating transportation and communications networks in a similar manner as traditional common carriers. … governments have tied restrictions on a carrier’s ability to reject clients to ‘immunity from certain types of suits’or to regulations that make it more difficult for other companies to compete with the carrier (such as franchise licenses). By giving these companies special privileges, governments place them into a category distinct from other companies and closer to some functions, like the postal service, that the State has traditionally undertaken. … In many ways, digital platforms that hold themselves out to the public resemble traditional common carriers. Though digital instead of physical, they are at bottom communications networks, and they ‘carry’ information from one user to another.

This is not the first time Hinkle has ruled against DeSantis; in May 2020, Hinkle ruled against Governor DeSantis regarding a law, SB 7066, which required felons to pay legal fees as part of their sentences before regaining the vote. The Tampa Bay Times reported that Hinkle “ruled that three large groups of felons are now eligible to vote … Those who were appointed a public defender for their case, since you typically get a public defender after showing you can’t afford one on your own; those who had their financial obligations converted to civil liens; those who only owed court fees, which Hinkle ruled were a ‘tax in any other name.’”

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