The past few years have seen a flurry of effort on the part of both law and left regulate how social media platforms monitor their users. TThese laws and bills raised a key constitutional question: Is the power of a platform to moderate user-created content protected by the First Amendment?

Until now, the courts have always tenuous that the platforms benefit from such protection. A critic Case to be decided by the eleventh circuit in the new year will be the most important to date to answer this question.

The law at issue is Florida’s SB 7072, a sweeping measure ostensibly adopted to end big-tech censorship. SB 7072 requires platforms to host all content from registered political candidates and “journalistic companies”, even if such content would violate the terms of use of the platforms. The law also imposes a consistency provision, which requires a platform to remove (or remove) content if a judge decides that the platform has previously removed (or removed) similar content. The law imposes penalties of up to $ 250,000 for each case of non-compliance.

Florida Republicans Argue that their “Freedom of Speech as Conservatives Under Attack by ‘Big Tech’ Oligarchs in Silicon Valley” and that SB 7072 “concerns the 22 million Floridians and their First Amendment rights”. Through Qualifying the bill in defense of freedom of expression and by qualifying the moderation of the content of platforms as “censorship”, these supporters obscure the essential fact that the editorial choices of private actors are categorically different from the restriction of freedom of expression. expression by the state.

This distinction is crucial because government is, and always will be, a monopoly; when it forbids speech, citizens have no recourse. Private speech platforms, on the other hand, have competition. Whether it’s new social media companies or traditional newspapers, these platforms can only decide which speech they or they host and present. Those who are not happy with their choices may choose to read or contribute elsewhere.

This difference is the reason why the Supreme Court unanimously hit a similar Florida law in 1974. By forcing newspapers to run editorials written by politicians they had criticized, the High Court said, the law violated newspapers’ editorial right to choose the speech they print. Private citizens have the right to respond to criticism, but not the right to force others to welcome their speech.

So when Florida argued nearly 50 years later, SB 7072 is on the side of free speech, a district court correctly and unsurprisingly, found these arguments “entirely at odds with accepted constitutional principles”.

Florida nevertheless claims that social media platforms are not protected by these traditional First Amendment principles. The state argues that a social media site does not feature a “sufficiently unified speech product” and that platforms have not engaged in sufficient content moderation in the past to deserve the right to do so at the state level. to come up. But as explained in a recently filed amicus curiae brief on behalf of the Cato Institute (one of us co-wrote), the protections of the First Amendment do not depend on any of these criteria.

Private actors have the First Amendment right to choose what they say, what speech they host, and how they organize it, regardless of the consistency of the speech they host or the extent to which they have edited that speech in. the past. The First Amendment protects everyone’s editorial rights platforms, not just a privileged class of institutional media that have already engaged in heavy moderation of content.

When he signed 7072, Florida Governor Ron DeSantis assimilated moderation of content from Fidel Castro and Hugo Chavez’s “tyrannical behavior” social media platforms. IF DeSantis is genuinely concerned about freedom of speech and authoritarianism, he should think twice before giving the government more control over private communication platforms.