Florida's social media law hasn't gone "All Too Well"
Other things getting us "Red" in the face? Irresponsible space satellite licensing, petitions for the FTC to ban exclusive agreements, and executive branch overreach.
This week, Americans discovered a brand new specter of evil to hate: actor Jake Gyllenhaal. Taylor Swift’s release of a 10-minute version of “All Too Well,” a detailed depiction of her relationship and breakup with Gyllenhaal, has quickly animated fans against him. (And not without reason; as she tells it, he ghosted her on her birthday!) The fact that the relevant affair happened more than 10 years ago is immaterial — “All Too Well” is the kind of song you need to sing at someone, and if no one’s slighted you lately… well, it’s not Gyllenhaal’s lucky day.
Whether or not you’re the type to keep up with celebrity intrigue, the lyrics to “All Too Well” (both the old and new version) are infinitely relatable. “I might be okay but I’m not fine at all”? That’s how I felt the first time I read through Texas and Florida’s terribly conceived social media laws this year. And the line “maybe this thing was a masterpiece ‘til you tore it all up” reminds me just a bit of the unfairly maligned Section 230. Check back with me next week — I’ll be playing the song on repeat at the TechFreedom offices until the rest of my colleagues get on board with this interpretation.
Social Media Regulation. We have a thing, a . . . connection, with SB 7072, Florida’s preposterously unconstitutional social media regulation. When the bill was introduced, we picked it apart in a Lawfare essay. We have been quoted in the media, exclaiming that the law is a First Amendment train wreck, countless times. When the lawsuit challenging the law was filed, the complaint cited our work. We filed an amicus brief, in the trial court, in support of that suit. After the trial court issued a preliminary injunction, we continued to write and speak about the law’s insoluble problems. And we’re still at it. This week, we filed an amicus brief urging the court of appeals to affirm the trial court, and rule SB 7072 invalid. Like our trial court brief, our appellate brief comprehensively debunks the idea that social media can be treated like common carriage. Check out the full brief here. Those in a hurry can skip to the press release or the Twitter thread. Law360 devoted a full article to our brief; that piece (albeit paywalled) is here.
FTC. Last Monday, we held our second in a series of webinars about the Federal Trade Commission — which we’ve long called the Federal Technology Commission. Bilal moderated the discussion, centered around an OMI petition for rulemaking on which the FTC recently sought comment proposing to ban exclusive agreements by a firm with a market share of 30% or more, or in an industry where the top three leading firms have a market share of 50% or more. Missouri Law Professor Thom Lambert argued that the proposal is ill-conceived and would reduce social welfare. Harvard Law Professor Einer Elhauge argued that the FTC’s enabling statutes are ambiguous and therefore the FTC should receive Chevron deference regarding exclusive agreement rulemakings. Stanford Law Professor Doug Melamed walked us through his 1998 address, which lays out a framework for thinking about whether vertical agreements are problematic. Texas Law Professor Abe Wickelgren contended something needs to be done about exclusive dealings, but per se rules are not appropriate. Dennis Carlton, Professor of Economics at the University of Chicago echoed TechFreedom’s recent comments that the petition lacks theoretical and empirical support. And Jay Ezrielev of Elevecon LLC discussed the issue from a policy perspective, arguing the proposal sets a very low threshold for what constitutes illegal exclusionary conduct.
Space. Outer space debris, and its threats, came into real focus this week. First, there was the Russian Cosmos 1408 ASAT test, which caused astronauts on the ISS to take shelter from a possible debris impact. We’ve commented on these issues many times; Jim wrote an op-ed in SpaceNews in June, and we filed a letter with the FCC in November 2020, warning that granting “market access” to a satellite system which poses an oversized orbital debris threat and is licensed by a country (Papua New Guinea) which hasn’t signed the Liability Convention sets a bad precedent. Approving such a request could put the U.S. on the hook internationally for damages in the event that an AST SpaceMobile satellite is involved in a collision. This week, an article in BBN Times took the time to highlight our concern about orbital debris and the choice of Papua New Guinea as licensor.
Executive Authority. We’ve made it clear that we believe legislating is a task for, well, the legislature, not the myriad alphabet agencies that make up the executive branch. Last week, we joined a letter with the Lincoln Network urging Senate Committee on Appropriations Vice Chairman Richard Shelby and Senate Subcommittee on the Legislative Branch Ranking Member Mike Braun to prioritize Congress’ policymaking capacity, “restore the balance of powers and reign in executive overreach.”