The Florida Deplatforming Law is Unconstitutional. Always has Been.

Last week, the Florida Legislature passed a bill prohibiting social media platforms from “knowingly deplatforming” a candidate (the Transparency in Technology Act, SB 7072), on pain of a fine of up to $250k per day, unless, I kid you not, the platform owns a sufficiently large theme park. 

Governor DeSantis is expected to sign it into law, as he called for laws like this. He cited social media de-platforming Donald Trump as  examples of the political bias of what he called “oligarchs in Silicon Valley.” The law is not just about candidates, it also bans “shadow-banning” and cancels cancel culture by prohibiting censoring “journalistic enterprises,” with “censorship” including things like posting “an addendum” to the content, i.e. fact checks.

This law, like similar previous efforts, is mostly performative, as it almost certainly will be found unconstitutional. Indeed, the parallels with a nearly 50 years old compelled speech precedent are uncanny. In 1974, in Miami Herald Publishing Co. v. Tornillo, the Supreme Court struck down another Florida statute that attempted to compel the publication of candidate speech. 

50 Years Ago, Florida's Similar "Right of Reply" Law Was Found Unconstitutional

At the time, Florida had a dusty "right of reply" law on the books, which had not really been used, giving candidates the right to demand that any newspaper who criticized them print a reply to the newspaper's charges, at no cost. The Miami Herald had criticized Florida House candidate Pat Tornillo, and refused to carry Tornillo’s reply. Tornillo sued.

Tornillo lost at the trial court, but found some solace on appeal to the Florida Supreme Court.  The Florida high court held that the law was constitutional, writing that the “statute enhances rather than abridges freedom of speech and press protected by the First Amendment,” much like the proponents of today’s new law argue. 

So off the case went to the US Supreme Court. Proponents of the right of reply raised the same arguments used today—that government action was needed to ensure fairness and accuracy, because “the 'marketplace of ideas' is today a monopoly controlled by the owners of the market.”  

Like today, the proponents argued new technology changed everything. As the Court acknowledged in 1974, “[i]n the past half century a communications revolution has seen the introduction of radio and television into our lives, the promise of a global community through the use of communications satellites, and the specter of a ‘wired’ nation by means of an expanding cable television network with two-way capabilities.”  Today, you might say that a wired nation with two-way communications had arrived in the global community, but you can’t say the Court didn’t consider this concern.

You might wonder why the Florida Legislature would pass a law doomed to failure. Politics, of course.

The Court also accepted that the consolidation of major media meant “the dominant features of a press that has become noncompetitive and enormously powerful and influential in its capacity to manipulate popular opinion and change the course of events,” and acknowledged the development of what the court called “advocacy journalism,” eerily similar to the arguments raised today. 

Paraphrasing the arguments made in favor of the law, the Court wrote “The abuses of bias and manipulative reportage are, likewise, said to be the result of the vast accumulations of unreviewable power in the modern media empires. In effect, it is claimed, the public has lost any ability to respond or to contribute in a meaningful way to the debate on issues,” just like today’s proponents of the Transparency in Technology Act.

The Court was not swayed, not because this was dismissed as an issue, but because government coercion could not be the answer. “However much validity may be found in these arguments, at each point the implementation of a remedy such as an enforceable right of access necessarily calls for some mechanism, either governmental