Many people have pointed to Florida as an example of a state protecting the rights and liberty of its citizens. They point to the state’s responses to COVID and Big-Tech as examples of not just upholding the rights of those in the Sunshine State, but specifically the leadership of Governor Ron DeSantis. Meanwhile, an objective look at some recent legislation and executive actions shows that when it comes to rights and liberty, not all in Florida is sunshine.
This is not an article about politics and political parties. It would be wrong, however, to ignore the part they play in these stories. When it comes to political parties, I frequently quote George Washington’s Farewell Address:
The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism.
Washington’s Farewell Address 1796
Beyond simply party dissension, Washington warned us of our tendency to seek security in the power of a single individual.
But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of public liberty.
Washington’s Farewell Address 1796
What does this have to do with rights and liberty in Florida? It’s the tendency I’ve observed of many Americans to laud the actions of someone with whom they tend to agree, without taking the time to consider the rightness of their specific actions..
Reopening
Florida was one of the first states to begin reopening after the initial COVID-19 shutdowns. Both praised and vilified for his leadership, as early as May 2020 Governor DeSantis began lifting the restrictions he had put in place. While history has shown that this early reopening was beneficial to both the health and economy of Florida, often lost in the discussion is the illegality of both the shutdowns and the reopening.
nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
U.S. Constitution, Amendment XIV
As the supreme law of the land, the Constitution of the United States prohibits any state from creating a law that would deprive someone of their life, liberty, or property without due process of law. This prohibition is also found in the Constitution of the State of Florida.
No person shall be deprived of life, liberty or property without due process of law,
Constitution of the State of Florida, Article I, Section 9
Due process is defined as:
An established course for judicial proceedings or other governmental activities designed to safeguard the legal rights of the individual.
Due Process, The Free Legal Dictionary
When Governor DeSantis initiated the restrictions commonly referred to as “lockdowns”, he deprived millions of Floridians of both their liberty (freedom of restraint only abridged and restrained, as is necessary and expedient for the safety and interest of the society, state or nation) and their property (control of their businesses), without due process. In the early stages of COVID-19, some excuses could have been made, since the projections of both the transmissibility and lethality of the disease were truly terrifying. As the hysterical assumptions were followed by actual data though, it soon became obvious that COVID-19 was not the “Black Death” or the “Spanish Flu” as some were predicting. While Governor DeSantis issued orders to lift some of the restrictions, he left in place arbitrary restrictions on places like movie theaters, barber shops, hair salons, gyms, and bars. This violated the Equal Protection Clause of the Fourteenth Amendment.
School Mask Mandates
Part of the reopening of Florida was Governor DeSantis’ reopening of schools for in-person instruction in the summer of 2020. Some of the reopened schools required students wear masks, while others did not. Observation of the differences in COVID-19 transmission between schools that required masks and those that did not showed that masks had little if any effect on the spread of the disease. On July 29, 2021, Governor DeSantis signed H.B. 241 into law. This law protects the rights of parents in Florida to make health care decisions for their minor children. Then, on July 30th, Governor DeSantis signed Executive Order 21-175, which states:
Section 2. Any action taken pursuant to Section I above shall at minimum be in accordance with Florida’ s “Parents’ Bill of Rights” and protect parents’ right to make decisions regarding masking of their children in relation to COVID-19.
Section 3. The Florida Commissioner of Education shall pursue all legal means available to ensure school districts adhere to Florida law, including but not limited to withholding state funds from noncompliant school boards violating any rules or agency action taken pursuant to Section I above.
Florida Executive Order 21-175
This led to multiple court fights, a stay on the enforcement of the governor’s order, followed by an overturning of that stay. If the original lockdowns were illegal, at least this fight to protect the rights of parents to make healthcare decisions for their children is an example of the Florida government, including Governor DeSantis, upholding their oath to support the constitutions of both Florida and the United States.
Vaccine Passports
Much as been said about the states, cities, schools, and businesses that have instituted vaccine mandates. In light of this Florida passed SB 2006 (2021), which included created section 381.00316 of the Florida Statues:
(1) A business entity, as defined in s. 768.38 to include any business operating in this state, may not require patrons or customers to provide any documentation certifying COVID-19 vaccination or post-infection recovery to gain access to, entry upon, or service from the business operations in this state. This subsection does not otherwise restrict businesses from instituting screening protocols consistent with authoritative or controlling government-issued guidance to protect public health.
FL SB 2006 (2021) – Section 18
SB 2006 goes on to also prohibit government entities and educational institutions from requiring proof of vaccination or post-infection recovery, but I need to focus on subsection (1). As I quoted before, both the Constitutions of the State of Florida and the United States prohibit someone from being deprived of their property without due process of law. Yet here we see the State of Florida passing a law to deprive the owners of private businesses and schools control of their property without any due process. Furthermore, by preventing businesses or schools from establishing their own standards for allowing entry onto private property, the state not only deprived the owners of their property, but their ability to consider for themselves the risks and rewards of allowing non-vaccinated or post-infected people onto their property. While my examination of the available medical data shows that vaccination does not prevent the spread of COVID-19, I don’t have the authority to demand that a business or private school owner comply with my way of thinking. And if I cannot do that, I cannot authorize a government exercising powers granted to it by my consent to do so either. By depriving businesses and private school owners the ability to consider both their needs and the preferences of their employees, customers, and students, the State of Florida has deprived all involved the liberty to decide for themselves whether they want to own, work, patronize businesses, or attend schools based on their position on vaccine requirements. While it is perfectly legal for the state to pass such a law to regulate access to government facilities, including public schools, it has no such authority over private businesses or private schools.
Social Media
Many Americans have a love/hate relationship with social media. Personally, I use social media platforms to help fulfill the mission of The Constitution Study, spreading the message of rights and liberty that are the foundation of this nation. I’m also keenly aware that I do so at the sufferance of those platforms. I’ve already been banned from Facebook and received a warning from YouTube, neither of which provided any evidence of my alleged violation of their standards. I recognize that as private companies, they have the right to control who has access to their property and under what conditions that access will be allowed. I’ve heard and read the thoughts of many people on how we should deal with this situation, which leads me to believe many Americans cheered when Florida enacted SB 7072 (2021), which prohibited many forms of social media censorship.
(2) A social media platform may not willfully deplatform a candidate for office who is known by the social media platform to be a candidate, beginning on the date of qualification and ending on the date of the election or the date the candidate ceases to be a candidate.
Florida SB 7072 (2021) – 106.072
This part of the law falls under the state’s control over the election process. Should a social media platform remove the content of a candidate while leaving the content of another, they are privileging one candidate over another. In effect, they are allowing advertising of one candidate while denying the advertising of another. My concern, however, is with the definition of deplatform and the punishment imposed on a social media platform that deplatforms a candidate for office.
(c) “Deplatform” means the action or practice by a social media platform to permanently delete or ban a user or to temporarily delete or ban a user from the social media platform for more than 14 days.
Florida SB 7072 (2021) – 106.072
If a social media platform were to ban a candidate for only 13 days, they have not legally deplatformed them. What is to stop a social media company from banning a candidate for 13 days though, restoring the account for a day, and then banning them again?
(3) Upon a finding of a violation of subsection (2) by the Florida Elections Commission, in addition to the remedies provided in ss. 106.265 and 106.27, the social media platform may be fined $250,000 per day for a candidate for statewide office and $25,000 per day for a candidate for other offices.
Florida SB 7072 (2021) – 106.072
Why do I have an issue with the punishments defined? In this situation, described in subsection (2), who is the aggrieved party? Isn’t it the candidate who has been denied access to the social media platform? Who reaps the benefit of the violation? The opposing candidate(s). Who reaps the benefit of the fines imposed? The State of Florida. There is no redress of the grievance for the squelched candidate, neither is there any assessment of the opposing candidate(s). In short, the only one who receives any redress is the State of Florida. Now compare this to subsection (4):
(4) A social media platform that willfully provides free advertising for a candidate must inform the candidate of such in-kind contribution. Posts, content, material, and comments by candidates which are shown on the platform in the same or similar way as other users’ posts, content, material, and comments are not considered free advertising.
Florida SB 7072 (2021) – 106.072
If one candidate’s posts are shown while their opponent’s posts are not, isn’t that, by definition of subsection (4), free advertising? Shouldn’t the candidate who was not banned be required to report their posts during the time when their opponents for the same office were banned as an in-kind donation, subject to all the same limitations and regulations as any other free advertising?
Florida Statues, Section 106.072 deals with political candidates, but what about average citizens?
(d) A social media platform may not censor or shadow ban a user’s content or material or deplatform a user from the social media platform:
1. Without notifying the user who posted or attempted to post the content or material; or
2. In a way that violates this part.
Florida SB 7072 (2021) – 501.2041
Florida Statues Section 501.2041 goes on to describe many other requirements for social media platforms including publishing their standards for censoring, deplatforming, or shadow banning, applying those standards consistently, and providing users’ notification, detailed explanation, and access to their data should their content be censored or their account be deplatformed. Failure of a social media platform to comply with section 501.2041 would be considered an unfair or deceptive practice. A complaint to the state under 501.2041 could lead to an investigation, which may lead to a civil or administrative action, meaning the state could sue or fine the platform for a violation. The user could also file a lawsuit against the platform, but only for inconsistent censorship or failure to property notify the user of being deplatformed. Not too bad, but there is one more twist to this specific legislation:
(j) A social media platform may not take any action to censor, deplatform, or shadow ban a journalistic enterprise based on the content of its publication or broadcast.
Florida SB 7072 (2021) – 501.2041
So, a “journalistic enterprise” gets special treatment under the law? Meanwhile, you and I (if I lived in Florida), can have our content censored and shadow banned as long as the rules are applied consistently. That means “journalistic enterprises” must have their content handled in a manner inconsistent with everyone else.
So what’s a “journalistic enterprise”?
(d) “Journalistic enterprise” means an entity doing business in Florida that:
1. Publishes in excess of 100,000 words available online
with at least 50,000 paid subscribers or 100,000 monthly active users;2. Publishes 100 hours of audio or video available online with at least 100 million viewers annually;
3. Operates a cable channel that provides more than 40 hours of content per week to more than 100,000 cable television subscribers; or
4. Operates under a broadcast license issued by the Federal Communications Commission.
Florida SB 7072 (2021) – 501.2041
That’s right, if you are a large “journalistic enterprise”, your social media content is protected by Florida law, but if you’re just a little bit smaller than the standards listed, too bad. So much for freedom of the press in Florida.
Every person may speak, write and publish sentiments on all subjects but shall be responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press.
Florida Constitution, Article I, Section 4
Does anyone else notice that the protections for freedom of the press in the Florida Constitution does not have a minimum size requirement? This part of the law not only violates a Floridian’s freedom of press, but also their equal protection as well:
All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property. No person shall be deprived of any right because of race, religion, national origin, or physical disability.
Florida Constitution, Article I, Section 2
I guess you are only equal before the law if you are large enough to matter to the State of Florida.
Conclusion
And so we return to President Washington. I neither praise nor criticize Governor DeSantis or the members of the Florida Legislature based on their political party affiliations. Much of what I’ve seen come out of the Sunshine State has been constitutionally sound, but not all. Since I refuse to support people or institutions, only policies, I can see the good, the bad, and the ugly of what’s being done in the name of the citizens of all fifty states. While focused on what has been reported regarding Florida recently, the same could be said about any state in the union. If I cannot praise Florida for its political bias, I cannot criticize New York, California, or Michigan for theirs. What I can do is examine the policies, determine if they follow the supreme laws of both the state and the union, and judge accordingly.
Perhaps, if Americas paid more attention to the constitutionality of the policy than the party membership of the person or persons enacting it, we could avoid the horrid enormities and frightful despotism our first President warned us about.
