Free Speech and Ron DeSantis
Does the 1st Amendment protect you or Facebook?
Hi, Ari here with a new piece about free speech and the First Amendment—the area of law I used to practice—and why some people invoking these freedoms might have them backward. You can subscribe for all my writing here:
Doing The Most… in Florida
There’s a simple saying about people overdoing it that applies to Florida Governor Ron DeSantis, the “mini-Trump” of today’s GOP.
He keeps doing the most.
That is slang for going too far or trying too hard. A lot of his pandering feels like that.
This piece is not only about him, but it starts with one of his recent bills, which aims to use state power to censor how social media companies decide what to post and host online.
Usually, a publisher or platform has free speech rights to make these calls. So whether it’s a newspaper or Twitter, the platform is a private “speaker” or publisher and they make the call. No one can force The New York Times to run a particular essay. No one can force Twitter to circulate say, Donald Trump’s tweets, if they decide not to.
This is all complicated, of course, by Elon Musk’s recent bid to buy Twitter and take it private.
Keep that in mind as you read DeSantis’s pitch for undoing all that, because he claims to be doing the opposite:
“Silicon Valley is acting as a council of censors. They cancel people when mobs come after somebody.”
That’s from his address backing this law, which aims to enable people in Florida to sue tech companies for taking down their posts. (You can see the link here from mini-Trump to “O.G. Trump,” who would be eligible under this law as a Florida resident, though he also already has sued Twitter.)
This isn’t the first time two opposing sides both claim the mantle of free speech and the First Amendment. There can be healthy debates about this, of course, including dilemmas that “pit” speech rights against each other.
However, one of the nation’s leading First Amendment experts (more on that below), Floyd Abrams, says DeSantis is dead wrong, and these tech platforms currently have strong speech rights under the law to decide what they post:
“Whether the speech is digital, or on paper, or in song, that [speech] is protected by its nature. Google has sweepingly broad First Amendment rights to decide… who to [publish or not].”
Abrams said that in response to DeSantis’s bill.
As a legal matter, this debate is not about whether you like a platform or person speaking on it. The law needs fair, consistent rules about who is exercising the First Amendment right, regardless of how one feels about, say, Twitter booting Trump, or Obama, or Oprah.
Abrams’ view of current law is that the “speech rights” are located inside the publisher, as private entities, and they can’t be forced to publish something. They can typically restrict your speech, or your entire account. So far the courts agree: judges are already pausing laws like the one DeSantis passed and a similar one in Texas.
As for the individual people, they have speech rights to speak in public, on the street, and presumably through alternative platforms that may still publish them online. This is a “zero sum” standoff, however, someone has to have the final call between the person posting and the platform being asked to publish it.
Abrams also notes the decision to publish is one layer of freedom, and other limits still apply to these entities. When social media companies “misbehave,” he notes, they can still be patrolled through the same rules that apply to the press, they are not “free of libel litigation,” for example.
Abrams is a leading expert in this field: The New York Times dubbed him the most sought after First Amendment litigator of his generation, and he won “The Pentagon Papers” case against President Nixon. Full disclosure, he is also my old boss. In journalism, that’s obviously relevant, so you can factor in our professional relationship.
I’ve also found him to be a measured, objective and thoughtful expert in this area, so it’s interesting that he views the DeSantis/Trump attacks on these social media companies—where there are some tricky free speech questions—as fundamentally misguided.
Do you think social media companies and publishers should have this right to block speakers and speech they deem dangerous or misinformation? Or are you more concerned about the risk of growing censorship, even if here it’s done by companies, not a government? Tell me in the comments and I’ll reply to some of you per usual.
P.S. Here’s my full discussion with Abrams from our Summit Series, like a cross between a law school class and a 90-minute episode of The Beat.
I agree with Abrams that companies as well as individuals have free speech rights. The current challenge is the dissemination of disinformation which has produced lethal consequences- anti vax info and insurrection defenses. Threading this needle is so tricky. Part of me believes social media platforms has created more problems than they have solved. I doubt the framers of our constitution imagined Facebook. Thought provoking essay Ari. Thanks
The first amendment should protect everyone's free speech but there has to be limits. "People" like Desantis want their free speech protected but no ones' that they disagree with or whom criticizes them : askewed free speech is what they believe in. Speech that is outright falsehood that affects peoples lives in a negative manner (FOX) should not be protected and made to retract their falsehood. I am reminded of the time I had a positive comment with another Hilary supporter and someone, a Kansas woman, called me a faggot and should die from AIDS (my page has no hint of gayness other than I follow ballet groups) and Facebook said it did not go against their standards yet I said someone was demented because of his outright lie and I was given 30 days FB jail. Abuse of free speech is rampant and needs policed. There is no perfect solution but it will always be a work in progress. Good and timely article Ari.