Come and get my $2500, Ron DeSantis.

I’m dipping a toe back into U.S. politics for a post because I saw this headline on Drudge:

At one level, the proposed law is media chum to trigger the libs and red meat for the GOP base who are hostile to the so-called mainstream media, and it’ll work, which I’m proving by posting about it. Consider this lib triggered. But the fact that my objection can be twisted into serving a convenient narrative for malicious actors is no excuse to not object. The law is unlikely to pass, and even if it did it wouldn’t stay in force for long. But even the suggestion of such a law as a serious proposal by a member of one of the U.S.’s major parties represents a significant step towards authoritarianism that draws directly from the playbook of Putin’s United Russia party, and responsible Floridians must take note of those similarities.

First, the law as proposed by Sen. Jason Brodeur: https://www.flsenate.gov/Session/Bill/2023/1316/BillText/Filed/HTML (see lines 158-253)

Next, an article explaining it: https://thehill.com/homenews/state-watch/3882068-florida-bill-would-require-bloggers-to-register-before-writing-about-desantis/

For the TLDR crowd, here’s a synopsis. A Republican senator in my home state of Florida yesterday proposed a law that would require people who get paid while writing about the governor and other elected executive branch officials to register their blog with the state or face fines of up to $2500.

It is important not to overreact to this kind of troll legislation which is unlikely to enter into force but which is useful to politicians mainly for its tendency to stir up emotional reactions in the media and move the public opinion needle. But it remains worth analyzing critically for two specific reasons: first, that it is a sign that at least some grassroots Republicans might be abandoning free speech as a first principle, and second, that it bears similarity to early attempts by Putin’s United Russia party to suppress anti-government public opinion in the run-up to the invasion of Crimea in 2014 and the escalation to full-scale war in 2022.

Though there’s some nuance on specific concerns, free speech is a topic about which Americans tend to agree, at least in principle and when polled with general language (Orth, 2022). Accordingly, both parties position themselves as champions of free speech. The right tends to defend speech that breaks politically correct social norms e.g. the controversy surrounding the gleefully homophobic Westboro Baptist Church (Baker et al., 2012), while the left tends to defend speech that breaks sexual and cultural social norms e.g. drag queen story time (Ellis, 2022), but both refer to similar values like liberty and freedom when they do so. For a comprehensive review of these tendencies over the first two centuries of American democracy from a civil libertarian perspective, see Graber (1991), or alternatively watch a few random episodes of centrist irritant Bill Maher’s Politically Incorrect on HBO, and you’ll get the picture. Americans across the political spectrum tend to appeal to free speech values to defend their position, whatever that position might be.

Brodeur’s proposed law is different. It is transparently indefensible in free speech terms, at least at the level of lay public discourse. Constitutional legal scholars are likely to shred it to pieces too, but that’s not relevant here as I’m not making any constitutional legal claims. What I’m pointing out is that this is law has an openly anti-free speech tone. It doesn’t even make an effort to appease the protections to speech the U.S. Constitution’s First Amendment provides, and it comes from a member of a mainstream U.S. political party which has historically claimed to champion free speech. I very much doubt Brodeur would even care to mount a defense of his law in terms of free speech because the way the law is written implies that the duty to register some kinds of speech — namely blog posts about Ron DeSantis — is obvious and not worth justifying. For such an assumption to come from someone whose party has in the past defended lobbying corporations as legal people deserving of First Amendment protection (Citizens United v. FEC, 2010) and railed against the presence of censorship zones in public universities (Ekin, 2017), this is a noteworthy change of tack. We should ask ourselves: why now, and why this way?

As a possible answer, we should look at the second unique feature of Brodeur’s proposed law: it would use a state mechanism to keep tabs on journalists. Despite the First Amendment, precedent for this in the U.S. exists, most dramatically in the Foreign Agents Registration Act (FARA, 1938). But crucially, both in intent and application, this Roosevelt-era wartime law focused on the characteristics of the speech agent itself, not on the content of the speech agent’s speech. Brodeur’s proposal differs by targeting only those bloggers writing about specific elected officials, which warrants comparison not with FARA but instead with a series of similar agent registry laws enacted in the Russian Federation beginning in 2012 (HRW, 2017), continuing with increased regularity and slowly-rising severity to the present day (HRW, 2022). These laws, like Brodeur’s, target not merely so-called foreign agents but also private citizens who write about specific topics which can be interpreted at the whim of the appointed judiciary. It started gently, but flash forward eleven years and innocuous symbols like rainbows or unicorns are routinely interpreted by the state as criminal “gay propaganda” (HRW, ibid..) Such laws paved the way for the present conditions in which the Russian state has wide power to legally and technically block anyone inside the Russian Federation from posting on social media after expressing critical views about their government’s invasion of Ukraine under strict interpretations of laws limiting speech of civilians on the topic (Simon, 2022). It is a routine occurrence; friends and family relations of mine in Russia have been subject to these sanctions with no fanfare. Like Brodeur’s law, the Russian registry laws appeared confusing, bureaucratic, and mostly harmless at first. But they are now being used to silence, penalize, and even incarcerate dissenting opinion. We should be aware of the danger this tendency presents in Florida now to prevent the eleven year frog boil Russian society experienced. If we don’t, this might be our grandma too:

Leftists have a unique opportunity here. Whether we like to admit it or not, many of us on the left admire values Republicans claim to hold, such as the commitment to free speech as a pillar of democracy. Those shared values create rare but fruitful paths towards consensus. Brodeur’s proposed blog law, if taken as Republican policy, leaves no room for such cross-party admiration, because it abandons the narrow consensus shared by those on the American left and right around free speech. This is a potential wedge issue over which many centrist Republicans would oppose Brodeur. The DeSantis crowd presents the left with its first chance in a generation to seize the free speech concept as a PR weapon against corrupt power. It’s our narrative too, not just theirs. And I’ll take any bet hinging on most Americans, even Republicans, breaking for free speech over government control of citizen journalists.

I’m (legally speaking, still) a Florida blogger, some people support me transactionally for my creative work including this blog, and I write about Ron DeSantis occasionally, all of which together mean that Brodeur’s proposal would cover my activity. But no state will convince me to register with some office for the right to write. I await my $2500 fine with the same mocking amusement a supporter of the Freedom Caucus would. Come and get it, Florida. Слава демократії!

References

Baker, J. O., Bader, C. D., & Hirsch, K. (2015). Desecration, moral boundaries, and the movement of law: The case of Westboro Baptist Church. Deviant Behavior, 36(1), 42-67. Available at: https://heinonline.org/HOL/Page?handle=hein.journals/devbh36&div=6&g_sent=1&casa_token=dbFkK3d2THAAAAAA:bBnrPyU_65aIlwgHKOLSAh8ZExYw0sdjyIJeGanXi8YBWVfO5wLJQOZcHu7lK8cJWb5sYRFTPA&collection=journals

Department of Justice. (1938). Foreign Agents Registration Act (FARA). Retrieved March 3, 2023, from: https://www.justice.gov/nsd-fara

Ekins, E. (2017). The State of Free Speech and Tolerance in America. Cato Institute.
Available at: https://www.cato.org/survey-reports/state-free-speech-tolerance-america#

Ellis, J. (2022). A fairy tale gone wrong: Social media, recursive hate and the politicisation of Drag Queen Storytime. The journal of criminal law, 86(2), 94-108. Available at: https://journals.sagepub.com/doi/pdf/10.1177/00220183221086455?casa_token=PhD-a1SxXy0AAAAA:MY1lDIVDXKiJEy7inpyD7lklpz5bkoL0E75L-x_HXRoYHfs-7ziDRjbiumSI0ckSlnbM1h20qrMDvA

Federal Election Commission (2010). Citizens United v. FEC. Available at: https://www.fec.gov/legal-resources/court-cases/citizens-united-v-fec/

Florida Senate. (2023). Senate Bill 1316: An act relating to bloggers. Available at: https://www.flsenate.gov/Session/Bill/2023/1316/BillText/Filed/HTML

Graber, M. (1991). Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism. University of California Press E-Books Collection. Available at: https://publishing.cdlib.org/ucpressebooks/view?docId=ft2r29n8c5;chunk.id=0;doc.view=print

Human Rights Watch. (2017). Russia’s assault on the freedom of expression. Available at:
https://www.hrw.org/report/2017/07/18/online-and-all-fronts/russias-assault-freedom-expression

Human Rights Watch. (2022). Expanded ‘Gay Propaganda’ Ban Progresses Toward Law. Available at: https://www.hrw.org/news/2022/11/25/russia-expanded-gay-propaganda-ban-progresses-toward-law

Mueller, J. (2018, May 9). Florida bill would require bloggers to register before writing about DeSantis. .Title of the article. The Hill. Available at: https://thehill.com/homenews/state-watch/3882068-florida-bill-would-require-bloggers-to-register-before-writing-about-desantis/

Orth, T. (2022, March 29). Does Free Speech Mean Freedom from Consequences? YouGov. Available at: https://today.yougov.com/topics/politics/articles-reports/2022/03/29/does-free-speech-mean-freedom-from-consequences

“О внесении изменений в отдельные законодательные акты Российской Федерации” [On amendments of some legislative acts of the Russian Federation]. Federal Law No. 129-FZ of 23 May 2015 (in Russian). State Duma. Available at: http://pravo.gov.ru/proxy/ips/?searchres=&bpas=cd00000&a3=102000505&a3type=1&a3value=&a6=&a6type=1&a6value=&a15=&a15type=1&a15value=&a7type=1&a7from=&a7to=&a7date=23.05.2015&a8=129-%D4%C7&a8type=1&a1=&a0=&a16=&a16type=1&a16value=&a17=&a17type=1&a17value=&a4=&a4type=1&a4value=&a23=&a23type=1&a23value=&textpres=&sort=7&x=63&y=16

Simon, S. (2022, March 5). Russian law bans journalists from calling Ukraine conflict a ‘war’ or an ‘invasion.’ National Public Radio. Available at: https://www.npr.org/2022/03/05/1084729579/russian-law-bans-journalists-from-calling-ukraine-conflict-a-war-or-an-invasion