Republican Gov. Ron DeSantis has just endorsed a bill aimed at stopping companies from exploiting social networks to exclude campaigning politicians ,while facilitating the initiation of proceedings against them by individuals who consider themselves victims of censorship.
The initiative is sure to please partisans of ex-President Donald Trump, who is still angry at the giants of Silicon Valley since his accounts were closed by Facebook, Twitter and YouTube in the aftermath of the January assault against the Capitol.
While it is potentially promising politically, the new law risks being around much longer in legal terms, since, according to several analysts, it infringes on the constitutional protections enjoyed by the companies implicated.
DeSantis didn’t say a word about these limitations before an audience of admirers who warmly welcomed his intention to force the hand of the heads of social networks.
“Silicon Valley thinks they know better than you. So their power up to this point has effectively been unchecked and they used this power to impose their orthodoxies and their ideology on our public square. This is not how a free society should operate,” he pleaded in criticizing businesses for censoring the Republican side.
“They have these standards, they always change it, and if you’re on one side, it seems to be any little foot-foul and you’re gone. And if you’re on the right side, from their perspective, then you can get away with whatever you want.”
The new law aims more specifically to prevent any operator of social networks from excluding from its platform a political candidate, or to hide the content that he places online between the moment that his candidacy is made official by electoral authorities and the date of the election. Any undue suspension is punishable by a fine of $250,000 per day.
Ordinary users who are excluded, suspended or censored must, at the same time, receive prior notice explaining “the detailed reasoning having led” to the decision so that they can contest it.
If they are judged to be victims of an injustice, they will then be able to initiate proceedings against the companies. The state itself is given the power to intervene in the matter and to demand the algorithms used by the companies in order to decide as to the handling of a message.
In an open letter, an official of the Computer and Communications Industry Association, Matt Schruers, warned that the law risks compromising the ability of businesses to regulate online content in order to assure a secure environment for their users. In addition, he emphasized that many firms would not have the means to deal with an avalanche of lawsuits.
Pierre Trudel, who is attached to the Center for Research in Public Law of the University of Montreal, thinks that the law will rapidly lead to legal challenges, which risk turning in favor of the operators of social networks.
Article 230 of the Communications Decency Act, initially introduced in order to facilitate the fight against pornography, confers on Facebook, Twitter, etc. “the right to block or exclude someone or to do nothing,” and would doubtless have precedence before tribunals as to Florida legislation, notes the analyst.
The American constitutional amendment protecting freedom of expression acts in the same manner, notes Trudel, since private businesses can raise it in order to affirm their right to regulate online content as they see fit.
Strong Political Polarization
The question, however, might become more complicated, says Trudel, considering the importance that the big social networks have taken on in public life.
“To what extent must platforms enjoy freedom of expression over the citizens who express themselves in these settings?” the professor underscores, insisting on the necessity of reflecting on the transformation of the notion of public space and the legal scope of the phenomenon.
The question of the management of online content is further complicated in the United States by the complaints of Democrats who, in contrast to Republicans, accuse the Silicon Valley giants of not sufficiently intervening in order to counter disinformation and hate speech.
A revision of Article 230, which is often mentioned by politicians of the two parties in connection with the twists and turns of news reports, appears necessary, but it is far from clear that it can be brought to a conclusion in the context of the strong polarization existing south of our border, states Trudel.
“I’m not very optimistic on this subject,” he notes.