Whatever else might be said about the curious lawsuits filed by former President Donald Trump, in which he accused three Big Tech companies of violating his First Amendment rights by denying him access to their platforms, it is fitting that he sued in Florida.
The state has long been on the cutting edge, and on the losing end, of efforts to force private companies to publish political messages to which they object.
Almost 50 years ago, the Supreme Court struck down a Florida law that would have allowed politicians a “right to reply” to newspaper articles critical of them. And late last month, a federal judge in Florida blocked a new state law that would have imposed large fines on some tech companies that “willfully deplatform a candidate for office.”
Together, the two decisions, one from the Nixon era and the other issued June 30, demonstrate that the lawsuits Trump filed in Miami against Facebook, Twitter and YouTube face steep odds. The First Amendment applies to government censorship and not private activities, courts have said.
The case that gave rise to the 1974 Supreme Court decision was brought by Pat Tornillo, who was displeased by colorful editorials in the Miami Herald opposing his candidacy for the Florida House of Representatives.
Tornillo invoked a Florida law that required newspapers to give candidates they criticized free space for a reply “in as conspicuous a place and in the same kind of type.” The newspaper refused, lost in the state’s highest court and appealed to the U.S. Supreme Court.
Chief Justice Warren Burger wrote for a unanimous court. But the First Amendment, he wrote, does not permit the government to usurp the role of editors in deciding what ought to be published.
“A responsible press is an undoubtedly desirable goal,” he wrote, “but press responsibility is not mandated by the Constitution, and like many other virtues it cannot be legislated.”
Justice Byron White, who was often hostile to the news media, wrote in a concurring opinion that an unregulated and unruly press is better than the alternative of government control.
“Of course, the press is not always accurate, or even responsible, and may not present full and fair debate on important public issues,” he wrote. “But the balance struck by the First Amendment with respect to the press is that society must take the risk that occasionally debate on vital matters will not be comprehensive and that all viewpoints may not be expressed.”