Via America’s Lawyer: Florida becomes the first state to punish social media platforms for banning political candidates. Attorney Stephen Luongo joins Mike Papantonio to discuss how Big Tech may be tasked with regulating content, but lawmakers are tasked with protecting free speech.


*This transcript was generated by a third-party transcription software company, so please excuse any typos.

Mike Papantonio:             The fight for free speech has engulfed big tech as, as Florida becomes the first state to punish social media platforms for banning political candidates. How did we get here and will other states follow suit? I have attorney Steve Luongo joining me now. Steve, this sounds like an entire new industry. It sounds like, okay, you’ve got, you’ve got Twitter who wants to ban somebody because they disagree with what they say. First of all, most people are pretty torn on that. They don’t want us anoint, you know, they, they don’t want, this, this is Orwellian, to, to, to think that all we can think about is what the big tech people want us to think about. But Republicans like DeSantis are grabbing a hold of that and if you look at the numbers, the population is sick and tired of it. Take it from there.

Stephen Luongo:               Right. Absolutely. It’s what you’re talking about is these elections and the political elections that we’re talking about are razor thin. So you have both sides of the party going half and half. And what governor DeSantis signed last month is a bill that does certain things. It allows Florida citizens to bring cause of action individually against these social media tech platforms. It also allows the Florida attorney general to bring cause of action against them. And lastly, and what’s been getting the most publicity, is it prohibits these social media platforms from what they call de-platforming or taking off all Florida, Florida political candidates and allowing the Florida election commission to impose large monetary fines, upwards of $250,000.

Mike Papantonio:             Okay. So let’s talk about the obvious arguments. Argument first amendment. We’re going to hear first amendment. The platform has right to do that. But you’re also going to hear part of the infrastructure for these platforms was built by taxpayers.

Stephen Luongo:               Right.

Mike Papantonio:             I mean, you can’t avoid that. Part of the infrastructure was built by, I don’t care if it’s this much of the infrastructure. The other part of it is the commerce clause, right?

Stephen Luongo:               Right.

Mike Papantonio:             Constitute, con law 1 0 1, you know, the con, the, the, the commerce clause. Talk about that.

Stephen Luongo:               Absolutely. The two biggest attacks on this bill that we’re seeing are obviously constitutional is a first amendment violation or not. Are we making a private company publish speech against their own private will and enforcing government speech? What we also are seeing is the violation of what they call the chapter 230 of the communications decency act. And that allows these social media platforms immunity to monitor their own platform and the communications that are expressed there. Now, the caveat to that is that the act allows them to do that. However, they need to do it in good faith and that’s really kind of the argument we’re seeing from Republicans and conservatives is that they’re monitoring behavior and content on these social media platforms, but they’re not doing it in good faith.

Mike Papantonio:             Okay. Just to show, just to, to make the point that this is not a forgone conclusion, that this is unconstitutional. Why, why? Because you have a diff, you have an issue that a jury could disagree about. One side says black, the other side says white, anytime you have a dispute like that as a matter of law, it’s very difficult to come in and say, well, we’re just going to make it go away on a summary judgment or directed verdict, because there is a question. There’s a question of fact, right?

Stephen Luongo:               Absolutely. And what we’re seeing right now is three days after this law was signed, it’s supposed to take effect July 1st. There was a lawsuit filed in Tallahassee in federal court, and we’re going to find out the answers there. They are alleging the same things that we just talked about, constitutional violations of the first and 14th amendment, as well as the federal preemption of chapter in section 230.

Mike Papantonio:             Yeah. But I’m talking about the other side. I’m talking about the candidate who says, you’ve taken me off of this. As a matter of law, you can’t say that I have, that you have complete protection under the first amendment.

Stephen Luongo:               Right.

Mike Papantonio:             Because it is, you, you can’t say that as a matter of law. But you can, because you have to judge the facts. Some trier fact has the right to say, look, let me know, candidate, did they act in bad faith? Platform, do you think you have this exclusive right? And here’s where I think it goes, the American public is at this point, just look at the, these aren’t my numbers. Look at the numbers. They’re fed up with social media tech giants making decisions about what we can and can’t listen to. 1984, Right?

Stephen Luongo:               Absolutely.

Mike Papantonio:             I mean, that’s what we’re talking about. Don’t you give them the right to say what they want to say, even though you might disagree with it. I mean, look, you had George Orwell spent four books about this, and it’s just, it’s, it’s surfaced again. And we have to really think analytically about it because I don’t think there’s a clear answer here. DeSantis, of course, he’s just playing to the public. Let me be a demagogue. Let me see what I can stir up. But where this thing lands, it could be a surprise, couldn’t it?

Stephen Luongo:               Yes, sir.

Mike Papantonio:             Thank you for joining me.

Stephen Luongo:               Absolutely.

Mike Papantonio is an American attorney and television and radio talk show host. He is past president of The National Trial Lawyers, the most prestigious trial lawyer association in America; and is one of the few living attorneys inducted into the Trial Lawyer Hall of Fame. He hosts the international television show "America's Lawyer"; and co-hosts Ring of Fire Radio, a nationally syndicated weekly radio program, with Robert F. Kennedy, Jr. and Sam Seder.