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Florida governor Ron DeSantis has signed into law a restriction on social media companies ability to ban candidates for state offices and news outlets, and in doing so offered a direct challenge to those companies perceived free speech rights. The law is almost certain to be challenged in court as both unconstitutional and in direct conflict with federal rules.

The law, Florida Senate Bill 7072, provides several new checks on tech and social media companies. Among other things:

The law establishes rules affecting these companies moderation practices; that much is clear. But whether doing so amounts to censorship actual government censorship, not the general concept of limitation frequently associated with the word is an open question, if a somewhat obvious one, that will likely be forced by legal action against SB 7072.

While there is a great deal of circumstantial precedent and analysis, the problem of are moderation practices of social media companies protected by the First Amendment is as yet unsettled. Legal scholars and existing cases fall strongly on the side of yes, but there is no single definitive precedent that Facebook or Twitter can point to.

The First Amendment argument starts with the idea that although social media are very unlike newspapers or book publishers, they are protected in much the same way by the Constitution from government interference. Free speech is a term that is interpreted extremely liberally, but if a company spending money is considered a protected expression of ideas, its not a stretch to suggest that same company applying a policy of hosting or not hosting content should be as well. If it is, then the government is prohibited from interfering with it beyond very narrow definitions of unprotected speech (think shouting fire in a crowded theater). That would sink Floridas law on constitutional grounds.

The other conflict is with federal law, specifically the much-discussed Section 230, which protects companies from being liable for content they publish (i.e. the creator is responsible instead), and also for the choice to take down content via rules of their own choice. As the laws co-author Senator Ron Wyden (D-OR) has put it, this gives those companies both a shield and a sword with which to do battle against risky speech on their platforms.

But SB 7072 removes both sword and shield: It would limit who can be moderated, and also creates a novel cause for legal action against the companies for their remaining moderation practices.

Federal and state law are often in disagreement, and there is no handbook for how to reconcile them. On one hand, witness raids of state-legalized marijuana shops and farms by federal authorities. On the other, observe how strong consumer protection laws at the state level arent preempted by weaker federal ones because to do so would put people at risk.

On the matter of Section 230 its not straightforward who is protecting whom. Floridas current state government claims that it is protecting real Floridians against the Silicon Valley elites. But no doubt those elites (and let us be candid that is exactly what they are) will point out that in fact this is a clear-cut case of government overreach, censorship in the literal sense.

These strong legal objections will inform the inevitable lawsuits by the companies affected, which will probably be filed ahead of the law taking effect and aim to have it overturned.

Interestingly, two companies that will not be affected by the law are two of the biggest, most uncompromising corporations in the world: Disney and Comcast. Why, you ask? Because the law has a special exemption for any company that owns and operates a theme park or entertainment complex of a certain size.

Thats right, theres a Mouse-shaped hole in this law and Comcast, which owns Universal Studios, just happens to fit through as well. Notably this was added in an amendment, suggesting two of the largest employers in the state were unhappy at the idea of new liabilities for any of their digital properties.

This naked pandering to local corporate donors puts proponents of this law at something of an ethical disadvantage in their righteous battle against the elites, but favor may be moot in a few months time when the legal challenges, probably being drafted at this moment, call for an injunction against SB 7072.

More:
Floridas ban on bans will test First Amendment rights of social media companies - TechCrunch

In response to the commentary by Ali Khalili ("This is a defining moment in US human rights values," The Daily News, May 26): Ali Khalili, where do you live? The tagline in your commentary says Webster. We have trouble enough in our country that you dont need to go on creating anti-Jewish feelings here.

The First Amendment guarantees freedom to petition the government. If the American Israel Public Affairs Committee cant lobby the government, neither can any group claiming to represent Palestinian Arabs.

By the way, Ive not seen any stories about American Jews and supporters of Israel beating up or harassing Palestinian supporters anywhere, unlike what the supporters of Palestinians in New York and Los Angeles have been doing to American Jews and supporters of Israel.

Erna Pelto

La Marque

Read the original here:
First Amendment protects even the Israel lobby | Letters to the Editor | The Daily News - Galveston County Daily News

WINK NEWS

It may not occur to you before you write an online review that you can be sued for what you say or be fired for it. After all, the First Amendment gives you freedom of speech, right?

But if anyone can say anything and amplify it on social media, wheres your right to privacy? And when can you get some serious trouble for just hitting Send?

Mandy Wells said the Fort Myers roofing company she hired, Marlin Construction Group, never got started on the job. She has been living under a tarp for close to a year, she said.

There was never any materials ordered so nothing was ever done.

When she told them to get lost, they sent her a bill, she said.

They want me to pay $6,084.

When she posted about the problem online, they sued her for defamation.

Well, theyre suing me because they didnt like it.

But Marlin claims Wells damaged them with her online reviews.

I dont think anything I wrote here is unreasonable, she said.

Bob Goodman, Wells attorney, said, You can just sue anybody for anything, and hes confident theyll win.

Theyll file a lawsuit for defamation, and a lot of people will simply just remove the comment, which is what what usually the purpose of the lawsuit is.

But why would anyone have to defend themselves in an expensive lawsuit for leaving a review or speaking their mind? Doesnt the First Amendment guarantee free speech?

Are you allowed to say anything you want to at any time? Kind of? Yes, you are. But there are consequences for what you say, said attorney Pam Seay.

She isnt involved in the case, but said your First Amendment rights are largely captured in its first five words: Congress shall pass no law.

Beyond the government, private citizens and companies can react to what you say however they want, including firing you, or if they feel you damaged them with something that isnt true, suing you.

At some point, its going to happen, Seay said. It will come to a head and the companies will say thats enough, weve had it, we put our lifeblood into this company and one little person with a computer is trying to ruin me.

Attorney Scott Hertz represents Marlin Construction Group in their case against Wells.

Certainly, people have the right to make complaints, but nobody has the right to make false complaints, he said.

Hertz said Wells is the one who broke the contract.

Clearly its her intent to create the impression that Marlin refused to do the work, not that she refused to allow them to do the work.

What the word work means is one of the reasons this is going to court.I didnt say anything disparaging about them, Wells said.

She said she only posted the facts: She hired Marlin Construction Group to deal with her insurance company and get her a new roof after wind damage. She said they never did the work but wouldnt release the claim on her insurance company so she could hire someone else.

But that how its misleading, Hertz said. Marlin did go out and do physical work. Marlin went on her roof. Marlin made measurements. Marlin prepared an estimate; preparing an estimate is work.

Therefore, Marlin said, Wells online review that they did no work was wrong and damaging to the company.

You need to make sure what youre saying is accurate, that it is true, Seay said.

In this case, a judge and jury may have to decide whats true and who has been damaged.

So, what can you safely post? Almost anything, including your opinion as long as its based on truth.

But keep in mind that truth means factually true, not just something you believe, so choose your words carefully.

Yeah, I dont care what they say, Wells said. It doesnt matter the things that they make up or the words they want to twist because theres none of that anywhere in anything that I wrote.

The bottom line is its headed to a judge and maybe a trial. While we cant predict how the case will come out, we want you to know we uncovered several complaints against Marlin Construction Group. The Better Business Bureau (BBB) gives them an F rating because of a pattern of complaints, many of which reference people being approached and encouraged to file an insurance claim and issues related to that claim.

State Attorney General Ashley Moodys office sent us 14 complaints about Marlin, which theyre looking into. Some of those also relate to working with insurance companies.

Marlins attorney said those are largely related to a problem with an employee that has been fixed.

Do your research before you hire any contractor.

More:
First Amendment rights at heart of lawsuit against woman who left 'damaging' online review - Wink News

from the i-mean,-holy-shit,-dude dept

The dumb takes on social media efforts to deal with problematic content keep getting dumber. Supposedly "conservative" commentator David Marcus has now written an opinion piece for Fox somehow arguing that fact checkers used on social media sites should be regulated. He's not the first to suggest this -- we just recently wrote about a Michigan legislator who was pushing an unconstitutional bill to regulate the fact checkers, but that this is the hill supposedly "conservatives" want to die on, seems particularly stupid.

Fact checking is protected by the 1st Amendment.

It is expressive. It is a core part of journalism as well, which is doubly protected under the "freedom of the press" part of the 1st Amendment. Marcus' article is so filled with dumb that it needs a fact check itself (as if Fox News ever did that sorta thing).

Nobody is checking the fact checkers, and it is time that changed. Its time for government to regulate the fact checking industry.

Okay, let's start with Fox News. Should we have government regulators crack down on Fox News consistent fact check failures? Including publishing this nonsense article? Of course not. It's protected by the 1st Amendment as well.

This may seem antithetical to traditional conservative values of small government, but the ubiquitous and monopolistic nature of social media, the power it has to frame how we see the world, is an existential challenge. We cannot be slaves to orthodoxy if that means Americans are subject not only to lies, but also the censorship of the truth.

It's not just antithetical to the values of small government, it's antithetical to the 1st Amendment, which seems like a bigger problem. And, no, social media does not have "the power to frame how we see the world." After all, studies have shown repeatedly that Fox News's own lies have had a much bigger impact than social media in framing how people see the news. And, again, that's protected by the 1st Amendment.

The truly incredible part in this, of course, is that folks like Marcus seem to only want regulations when he believes the people he agrees with are treated unfairly. When it's others? He'd be the first one screaming about the Constitution. He's not principled, beyond "my team must win, and if not, I'll play victim."

Marcus' attempt to deal with the 1st Amendment issue is laughable to say the least:

The First Amendment rightly renders government powerless to regulate news outlets publishing content from their own in house fact checkers -- they are protected by freedom of the press. But third party independent fact checkers are another story entirely.

No, they're not another story altogether. Fact checking is expressive and it is a function of the press as well. You cannot regulate it.

These are entities such as Lead Stories, Politifact, and even the Associated Press that offer their fact checking expertise to social media platforms so the latter can claim they are not making editorial decisions. But that only works if third party fact checkers are operating objectively and without bias. It is quite obvious that this is not the case.

Again, it's pretty fucking rich for someone on Fox News to be whining about "bias."

So what can be done about this dangerous situation? Anew billbefore the Michigan House of Representatives is a move in the right direction. The bill would require fact checkers to register with the government and carry insurance to cover payment to those who suffer financial damages as a result of a bogus fact check.

Laws like this can establish simple, uniform practices that fact checkers must abide by to provide fairness in the service they provide.

No, laws like that are unconstitutional attacks on 1st Amendment protected activity.

Regulating the fact checking industry would provide much needed accountability to the American people.

No, it's an effort to intimidate fact checkers who call out bullshit like yours, Marcus.

Facts are supposed to be stubborn. Either an article or post is factual or it isnt.

Your article is not factual.

Regulating the fact checking industry would not be any kind of government censorship of the media; it would not deprive any publishing entity from running a fact check. It would merely ensure that companies which sell their fact checking services are applying objective standards when evaluating material. This is something they should be doing anyway, and is something that they are demonstrably not doing at present.

I mean, come on. This one is too easy. Just turn it around: "Regulating cable news would not be any kind of government censorship of the media; it would not deprive any publishing entity of saying what it wanted. It would merely ensure that cable TV channels are applying "objective standards" in airing content. This is something they should be doing anyway, and is something they are demonstrably not doing at present."

Same damn thing.

The American people do not just have to sit back and take it as social media platforms,which provide huge swaths of them with their news, hire censors that lie about what constitutes a fact.

No, they don't have to sit back. They can step up and speak out wherever else they'd like -- such as on Fox News, or on their own websites. What they can't do is get the government involved to intimidate fact checkers and threaten them with fines if they fact check "the wrong way."

Again, this is easy to demonstrate with just a few changes: "The American people do not just have to sit back and take it as Fox News,which provides huge swaths of them with their news, hires propagandists that lie about what constitutes a fact." And, again, American people don't have to sit back. They can ignore Fox News, they can watch other channels, they can speak out about Fox News's continued blatant propaganda and misinformation... or they can boycott their advertisers. There's lots they can do, and lots users of Facebook can do. What they cannot do under the Constitution, is pass a law regulating expressive activity like fact checking.

The people, through their elected officials absolutely have a right to ensure that this industry is providing a level playing field.

Again, let's apply that to Fox News as well to see how laughable a statement that is.

If one was to sell a service in which they weighed produce to set a price it would and should be illegal for them to secretly use different scales depending on the farmer or the type of produce.

Weighing this is not expression, genius.

Throughout the past year biased fact checking has done irreparable harm to the body politic.

Throughout the past decade, biased Fox News has done irreparable harm to the body politic. How the hell do people like Marcus not recognize that every claim they're making applies equally back on them.

Regulating the fact checking industry would go a long way towards ensuring the American people are never misled in this manner again.

Again, replace fact checking with "Fox News." And imagine how David Marcus would react if there were a serious legislative proposal to that effect.

Social media companies want to have it both ways. They insist that they are not publishers and therefore not liable for what appears on their supposedly neutral platforms. But they also insist that it is fine for them to suppress content because a third party fact checker, chosen by the social media company itself, says they should.

This is not what they insist. This is what a bunch of fake "conservative" idiots have pretended they insist in order to knock down a strawman.

There is nothing special about fact checkers that protects them from regulations requiring them to be fair and honest in their dealings.

They engage in expressive activity. Which makes them protected under the 1st Amendment, just like you and me.

This entire opinion piece is full of misleading, nonsense, and blatant factual errors. But, yeah, sure it's the "fact checkers" that need regulating.

Thank you for reading this Techdirt post. With so many things competing for everyones attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites especially a site like ours that is unwilling to pull punches in its reporting and analysis.

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The Techdirt Team

Filed Under: 1st amendment, content moderation, david marcus, fact checking, free speech, journalism

Read more:
Fact Check: Yes, Fact Checking Is Totally Protected By The 1st Amendment - Techdirt

SACRAMENTO Throughout my life, conservatives have believed the U.S. Constitution means what its authors intended. While it can sometimes be challenging to apply the documents verbiage to modern times, conservatives know that when the founders wrote, Congress shall make no law they meant that, Congress shall make no law. Easy peasy, as the saying goes.

By contrast, liberals have often championed a living and breathing Constitution one that evolves with the times. They dont mean proper change via amendment, but through enlightened court interpretations. Like shamans, liberal justices dont obsess over the founders intentions, but on truths found in penumbras. Go figure, but their divinations usually conform to their own biases.

In a bizarre twist, conservatives are now sounding like liberal jurists rather than traditionalists on some key constitutional questions. Lets take the First Amendment, which the founders viewed with particular significance given that they placed it, well, first in the Bill of Rights. These days, conservatives are busy reinterpreting its meaning and have bene quite creative with their new interpretations and divinations.

For instance, Floridas Republican Gov. Ron DeSantis recently signed a law that applies governmental moderating standards to social-media companies. It fines tech companies if they suspend political candidates prior to elections, lets the state attorney general and even private citizens sue these companies if they believe theyve been treated unfairly, and gives online publishers a list of enforceable editorial conditions.

Thats obviously a government restriction on speech given that the government is mandating that private publishers behave in a certain way. Yet writing in American Spectator, the Heartland Institutes S.T. Karnick has discovered such a novel method of interpreting that law that he would have made former Justice Thurgood Marshall, the late justice who was known for his creative constitutional gyrations, quite proud.

Defenders of Big Tech routinely argue that these companies have a right to do whatever they want because they are not government entities. That is false, Karnick wrote. The fact that they are in the private sector does not change the definition of the word censorship. If we erase the distinction between private censorship (which we all do) and government censorship, however, we essentially erase the First Amendment.

The Constitution forbids Congress specifically from regulating private speech, but then the 14th Amendment applied most of the Bill of Rights to the states and their governments. Karnick also argues that the 10th Amendment gives Florida the right to exercise its authority on this basic-rights issue, which is a rather odd position for a conservative.

If the 10th Amendment, which vests many powers in the states rather than the federal government, can be justified to obliterate constitutionally protected rights, then California can ban firearm ownership, despite what the Second Amendment says. If you dont think rights should apply to tech companies whose decisions anger you, then they might not apply when your decisions anger others.

The Fairness Doctrine, which mandated equal time for political views on public airwaves, offers a template for what conservatives now are suggesting. Its elimination allowed for the proliferation of conservative talk radio, given that such imbalanced programming previously was verboten. What would happen if the Biden administration could force broadcast outlets to balance the views of Mark Levin and Tucker Carlson? Take a guess.

Many of these conservatives are like liberals in another important way. They seek to control private-sector companies because they dont like how they operate. For instance, David Marcus complained in a Fox News column last week about the medias Johnny-come-lately coverage of the theory that the coronavirus emerged from a Chinese laboratory.

Yes, the media mostly treated that story as a conspiracy when Donald Trump had postulated it but are treating it seriously now that Trump is gone. So what? Publications can print whatever they choose, some do a lousy job and all of them are biased. My conclusion is the media should learn from its mistakes, but Marcus take is more draconian.

Nobody is checking the fact checkers, and it is time that changed, he wrote. Its time for government to regulate the fact checking industry. He named Politifact and Associated Press as examples of organizations that need government oversight as they advise social media even though they are journalism organizations.

Marcus claims the First Amendment forbids regulation of in-house fact checkers, but he carves out the exception for independent checkers something he appears to have pulled from thin air just like the living-and-breathing jurists. This may seem antithetical to traditional conservative values of small government, he says, but we ought not be slaves to orthodoxy.

Perhaps the Biden administration should appoint a regulator to fact-check Marcus writing for the next few weeks and then he can report on the experience. Thanks to First Amendment orthodoxy that wont happen, but its time for conservatives to grow a thicker skin and stop attacking the constitutional protections all of us enjoy.

Steven Greenhut is Western region director for the R Street Institute and a member of the Southern California News Group editorial board. Write to him at sgreenhut@rstreet.org.

More:
Anti-tech regulation turns Constitution on its head - Redlands Daily Facts