COHN: Trading Big Tech For Big Government Will Backfire For Conservatives

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Ari Cohn Contributor
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Many conservatives celebrated this week when Florida Governor Ron DeSantis signed his marquee Transparency in Technology Act into law. The law, conservatives hope, will rein in “Big Tech” companies by preventing them from banning certain users or removing content that platforms find objectionable.

Their celebration will be short-lived. In the near-term, because the law is unconstitutional and its primary provisions are unlikely to ever be enforced. In the long-term, because trading in Big Tech for Big Government doesn’t often produce results that conservatives like.

A First Amendment lawsuit challenging the law was filed in federal court this week. The plaintiffs will undoubtedly seek a preliminary injunction preventing enforcement of the law until the court rules on its constitutionality. They are likely to get that injunction, because the law clearly violates the First Amendment.

At its core, Florida’s law is about forcing social media platforms to carry certain speakers and viewpoints. But it is a bedrock First Amendment principle that the government cannot compel private parties to speak or to carry the speech of others.

The government cannot force you to place a sign on your lawn promoting a political candidate, it cannot force Fox News to invite a spokesman for Hamas on its shows and it cannot force the local grocer to allow ANTIFA flyers on its community bulletin board. This principle applies equally to social media companies, which retain their own constitutionally protected editorial discretion.

But even though the First Amendment ultimately dooms Florida’s law, part of it could survive to haunt conservatives. Attempting to make the bill more palatable (and perhaps to obfuscate its true purpose of compelling speech), DeSantis framed his bill as a “consumer protection” measure. What DeSantis and other proponents of this bill overlook is that  normalizing a “consumer protection” rationale for regulating social media is dangerous indeed for conservatives.

First Amendment advocates and proponents of limited government share a common philosophy: never create government power that you would not give to your political or ideological opponent. With each attempt to justify social media regulation by appealing to consumer protection, conservatives are doing just that.

This concern is not hypothetical. Democrats have already introduced federal legislation based on the consumer protection theory, proposing that a government agency like the Federal Trade Commission should be given the authority to regulate social media. That may not seem problematic to conservatives at first blush — until one understands that the purpose of such efforts is to pressure platforms to remove more content, not less.

Introducing her “Online Consumer Protection Act” earlier this month, Congresswoman Jan Schakowsky explained that “technology companies have allowed harmful content to spread across their platforms in violation of their promises to consumers.” The press release announcing the SAFE TECH Act (introduced by three Democrats) contains a litany of complaints about the “disinformation” and “hate speech” present on social media, with Sen. Mazie Hirono concluding that “platforms must either address the serious harms they impose on society or face potential civil liability.” And in March, an entire congressional hearing was devoted to telling platforms that they were facing regulation because of the prevalence of “extremism and misinformation” on their services.

Under these proposals, platforms will face increased pressure to remove heterodox views on COVID-19, vaccination, the 2020 election (and future elections), political candidates and other forms of expression that conservatives feel are already being censored. Like DeSantis, the politicians behind these bills are waving the banner of consumer protection. But consumer protection laws hold companies to their material representations to consumers. If platforms are indeed biased against conservatives, they will face lawsuits from the left because they have not removed enough of the content that they claim to prohibit.

And it would be foolhardy to expect these efforts to be limited to social media. A casual scroll through social media reveals plenty of appetite for attacking traditional conservative media under consumer protection theories as well.

Indeed, last April a nonprofit group filed a consumer protection lawsuit against Fox News over its COVID-19 coverage, alleging that the network contributed to the health crisis by spreading misinformation and causing viewers to not adequately protect themselves. While that lawsuit was ultimately dismissed, the problem remains: the more society calls for attacking First Amendment rights using consumer protection theories, the more such attacks will be attempted.

As with most performative, unconstitutional legislation, the true danger from Florida’s law is not in its enforcement, which is all but foreclosed from the outset. The real danger is in the erosion of First Amendment rights, slowly whittled away by continued invitations for the government to intervene against political and cultural opponents. But when it comes to government power, meddling begets meddling, and eventually that meddling will stick — just likely not in the intended way. “History bears testimony,” Justice Frankfurter observed, that liberty is extinguished “heedlessly at first, then stealthily, and brazenly in the end.”

That should be cause for concern, not celebration.

Ari Cohn is Free Speech Counsel at TechFreedom, a non-profit, non-partisan think tank dedicated to technology law and policy