Florida’s new law punishing social media platforms that prohibit politicians from violating their terms of service is obviously unconstitutional, violating free speech and corporate association rights. But the law is a good opportunity to reflect on how the First Amendment applies to for-profit corporations, and suggests reasons to think more deeply about the infamous 2010 Supreme Court decision, Citizens United v. FEC.
The key provision in Florida law states that “a social media platform cannot willfully deploy a candidate for office” – and imposes a fine of $ 250,000 per day for violations. He obviously aims to deport former US President Donald Trump through Twitter, Facebook and others. (Disclosure: I advise Facebook on free expression issues and helped design the oversight board that recently upheld Trump’s de-mating; the views expressed in this column are, as always, entirely my own and not at all those of Facebook.)
The law almost certainly violates section 230 of the Decency of Communications Act, which gives platforms protection from prosecution for their content moderation decisions. For this reason, a federal court could strike down the law on statutory grounds without ever ruling on First Amendment issues.
Yet these First Amendment problems are at the heart of the problem. Under current constitutional law, social media platforms – like all businesses – enjoy the same protections of freedom of expression and association that belong to individuals.
Essentially, Florida is telling platforms that they can’t choose which speech to allow on their platforms, or choose which users they want to partner with. It’s a double no-no, in terms of the first amendment. This amounts to forced speech and forced association, which clearly violate the Constitution.
Social media platforms have terms of service (often referred to as “community guidelines”) that restrict speech significantly more than a government would be allowed to do. They regularly use these guidelines to eliminate racist, sexist, homophobic and transphobic speech. This speech would be protected by the First Amendment if it was the government trying to sanction it.
Unlike private companies, the government has an obligation under First Amendment doctrine to ensure that its regulation of expression is point of view neutral. This means that the government cannot normally ban speech that is offensive to traditionally marginalized or vulnerable groups – because it would disadvantage the perspective of racists and haters.
But social media companies are not the government. And they themselves have First Amendment rights. In other words, the platforms have the constitutional right to allow and prohibit any speech they want on their platforms; and the corresponding right to dissociate from speakers who violate their terms of service, like Trump.
Conservatives who don’t like this state of affairs are in favor of legislation, like the Florida law, that would impose more permissive standards for moderation of content on platforms. Their concern is that the platforms’ content moderation standards are not neutral.
But being a for-profit company doesn’t mean losing your rights to free speech. The New York Times is a for-profit corporation, just like CNN, and Bloomberg for that matter. These for-profit companies are all in the news business. They are part of the free press which is explicitly mentioned in the First Amendment. They certainly shouldn’t lose their First Amendment rights to free expression just by charging for their products.
And to be clear, nothing in the First Amendment says that only media companies are protected against free speech. All kinds of companies in all kinds of industries sponsor speeches, whether it’s on their websites or elsewhere. This discourse contributes to public discourse. For this reason, it deserves the protection of the First Amendment.
The Conservatives agreed with companies enjoying free speech when Citizens United was ruled on and defined speech, in the context of elections, as independent spending not coordinated with political campaigns. The Supreme Court ruled that these expenses could not be limited by law because they could never give rise to a risk of corruption in return.
This is in fact absurd: money can of course corrupt politicians. But that part of the decision rested on a highly questionable position in the 1976 decision, Buckley v. Valeo, that campaign contributions and expenses should be treated as forms of speech rather than money.
The idea that for-profit companies enjoy First Amendment rights – defined as money – has been hotly contested among progressives since the Citizens United decision. Now it is the Conservatives in Florida and elsewhere who are acting as if businesses have no right to free speech. And this time the speech is real speech.
Noah Feldman is a Bloomberg opinion columnist and host of the “Deep Background” podcast. He is a professor of law at Harvard University and was a clerk to the United States Supreme Court justice, David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President”.
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