In 2023, you don’t have to look hard to find tech legislation that poses a potential conflict with the U.S. Constitution. Tune in to any commerce committee hearing in nearly any state capital and you’ll find a debate over legislation that violates the rights of consumers, or platforms, or parents, or befouls our justice system in some way. But it’s something special to find a single legislative proposal that checks all those boxes.
Leave it to Florida Governor Ron DeSantis to propose a tech agenda so thoroughly unconstitutional that our list of violations is longer than the Bill of Rights itself.
To begin with, the tech agenda announced this February in Tallahassee includes legislation already halted by the federal courts for violating the First Amendment. The so-called Digital Bill of Rights includes a bullet point on “the right to participate in online platforms without unfair censorship,” presumably a nod to the anti-content moderation legislation which Florida passed in 2021.
The problem is, Florida’s law, which would have prevented online platforms from removing misinformation, hate speech, and other malicious content, comes in direct conflict with the First Amendment right of platforms to decide what speech they want to host. In fact, last year, federal U.S. District Judge Robert Hinkle blocked Florida’s S.B. 1106, stating “[t]he legislation compel[ed] providers to host speech that violates their standards—speech they otherwise would not host—and forbids providers from speaking as they otherwise would.” The Florida law is currently under review by the Supreme Court.
It takes a special brand of hubris to propose “groundbreaking legislation” (their words, not ours) that has already been struck down by a federal court for violating the Constitution. But the First Amendment transgressions posed by Florida’s tech agenda don’t end there.
The tech agenda also includes a “right to protect children from online harms.” Obviously, this bullet point raises questions regarding what lawmakers mean by “harms,” and whether those harms include the same malicious content that Florida’s S.B. 1106 attempts to prohibit platforms from “censoring.” But, that’s a legislative mystery for another day, as our focus is specifically constitutional violations.
The vague “right to protect children from online harms,” is not short on constitutional no-nos either. First, the provision violates the First Amendment rights of minors by interfering with their ability to access legal and protected information.1
The children’s provision also violates the First Amendment rights of adults by interfering with their ability to participate in expressive activities and access information. Laws that require Internet services to treat minors differently from adults will require age verification efforts in which adult users may not feel comfortable participating. If an adult user chooses not to supply personally identifying information, the adult user will be foreclosed from accessing protected speech.2
Then we come to the tech agenda’s “right to know how internet search engines manipulate search results,” which impermissibly compels Internet services to disclose information regarding their editorial judgment on how they moderate content posted to their site.
Altogether, these represent the most significant First Amendment violations posed by Florida’s rightwing tech agenda. Of course, the agenda also contains provisions that come into conflict with other constitutional protections as well.
By restricting minor’s access to perceived online harms, the legislation interferes with the privacy rights of parents, who have a constitutional right to raise their children without government interference. The Florida proposal undermines parental choice by imposing content standards on minors absent parental consent.
Last but not least, it’s important to note that the Fourth Amendment requires enacted legislation to extensively inform regulated entities about how to comply with the law. The Florida tech agenda is so vague as to constitute meaningless gibberish at times.
In other states, we might have confidence that legislators would clearly define terms like “harm,” “surveillance,” and “manipulate” before enacting legislation. But Florida’s rightwing lawmakers have a history of passing tech legislation so indefensible it’s been laughed out of court.
Sadly for voters, many of the tech issues around which this agenda focuses are deserving of legislative action, either at the federal or state level. Consumers want better digital privacy protections and safe experiences for children online. But the Florida governor’s approach to these issues in this year’s tech agenda not only fails to tackle these issues in a constitutional manner, but stalls any serious conversation around tech regulation in the Sunshine State.
1Brown v. Entertainment Merchants Association, 564 U.S. 768 (2011)
2ACLU v. Reno, 521 U.S. 844 (1997)