Like all politics, state politics is largely performative. Being loud, wrong or both might not be pragmatic or statesmanlike, but it’s often good politics.
Lately, Republican Florida Gov. Ron DeSantis has excelled at playing the role of bold politician — the leader who is doing something, who is fighting back. In particular, he has gotten good at looking like the man who can “take on” the tech companies.
Speaking at CPAC last month, DeSantis promised to implement “the most ambitious reforms yet proposed for combatting political censorship and deplatforming, for preventing Big Tech from interfering in our elections, and for safeguarding the privacy of your personal data.”
DeSantis was referring to two bills, both of which the Florida legislature is likely to pass before its session ends next month. The first is a consumer data-privacy bill. The second, called a “technology transparency” bill, is an effort to regulate social media.
The data-privacy bill resembles other legislation moving through statehouses across the country. It would give Internet users the right to access, correct or delete the data a company has on them, as well as the right to opt out of data collection altogether.
These have become standard terms in state privacy laws. Democratic states like California and Virginia have enacted them.
Even very similar state privacy laws could be applied in very different ways. It is lamentable, therefore, that privacy rules are being set at the state-level. We need a federal privacy law that imposes uniformity.
What’s surprising in the case of Florida, though, is not what its privacy bill says, but what its governor has said about it.
DeSantis has rolled his unremarkable privacy measures into his larger rhetorical crusade against what he calls “the oligarchs in Silicon Valley.”
“Floridians,” he said at the press conference unveiling the bill, “are no longer going to be dictated to by those Big Tech companies.”
Overhyping a bill is not productive, and it’s not statesmanlike. But it’s good politics.
At least the privacy proposal is a serious bill. The “transparency” proposal, by contrast, is pure theater.
That bill is in essence a speech code for large social media websites. It would force such sites to apply their content-moderation standards “in a consistent manner,” and to let users opt out of algorithmic promotion or sorting on newsfeeds. It would also bar the sites from expelling politicians, or even moderating their speech, during an election.
The bill is, in short, a First Amendment train wreck. It tries to tell privately owned websites what to say and how to say it. It would make almost all of their content moderation decisions legally questionable. Worse, it would force the sites to let politicians say almost anything they want.
In the pantheon of constitutional rights, there are few more fundamental than that the government cannot make you its mouthpiece. Most laws that try to compel speech get struck down. Nearly every law that compels political speech does.
Ironically, the leading case on these points (though there are many others) also involved a Florida law, one that forced newspapers to publish political candidates’ replies to criticism. The Miami Herald challenged the law under the First Amendment.
The law was necessary, the petitioner claimed, because many newspapers at the time had a local monopoly on information. No matter, the Supreme Court said. “The choice of material to go into a newspaper,” it wrote, in an opinion striking the law down, “constitute[s] the exercise of [protected] editorial control and judgment.”
DeSantis’s transparency bill is doomed. That hasn’t stopped him from boasting that he’s the man to “crack down” on the “Big Tech cartel” seeking to make itself “Big Brother” in a real-life “1984.” He’s decided that making noise is more important than passing a good (or even valid) law.
It’s not productive. It’s not statesmanlike. But it’s good politics.
Corbin K. Barthold is Internet Policy Counsel at TechFreedom.