(NEW YORK)— Ahead of this Thursday’s debate between Florida Gov. Ron DeSantis and California Gov. Gavin Newsom, new analysis by PEN America shows that, since the last presidential election, the two states have gone their separate ways in proposing and passing a raft of bills with dramatic implications for freedom of expression. The developments illustrate how, with the U.S. Congress largely paralyzed, critical measures affecting free speech are now being designed and implemented at the state level, reshaping public discourse. Policies introduced in the two states are shaping the boundaries of speech on issues from the teaching of history and social media regulation to press freedom and protest rights.

In twin reports, The Florida Effect and The California Effect, PEN America’s analysis demonstrates how many of the most meaningful policy decisions affecting these freedoms are playing out at the state level. Florida and California serve as legislative laboratories where new policies are tested out, and their legislation can inspire copycat proposals around the country.

These policies are likely to be among the issues in contention as the two governors meet for a 90-minute debate moderated by Sean Hannity on Fox News.

PEN America evaluated the states’ policy agendas in five major areas: artistic and creative expression; online issues around transparency, content moderation and social media; press freedom; the right to protest; and free expression in education. 

As illustrated in PEN America’s report, many policy priorities championed by Florida lawmakers have degraded free speech rights. In California, the record has been more mixed: efforts by elected officials to decriminalize artistic expression and protect journalists covering protests have been unambiguously positive, while attempts to address complex challenges in the digital sphere have sometimes resulted in legislation with worrying implications for free expression.

Florida Sets A Censorship Agenda

While invoking the rhetoric of liberty, Florida has been setting a policy agenda of censorship that favors the views of those in power and silences dissenting voices, the report says. With more books banned than any other state— 40% of all bans documented by PEN America in the last school year— and with new laws that dramatically restrict the space for protests, Florida’s assault on free expression is the worst in the country.

Katie Blankenship, a former ACLU of Florida litigator who this month became PEN America’s inaugural director in the state, said: “Gov. DeSantis and the legislature have launched a legislative assault to weaken the First Amendment rights of Floridians. This effort amounts to a bid for ideological control over the state’s universities, public education system, social media, and the free press. At the same time, they’ve particularly targeted expression by and about the LGBTQ+ community and people of color, and used fear mongering tactics to rally support for a campaign of censorship.”

Other states with overwhelmingly Republican legislatures are following Florida’s lead in passing censorious legislation. For example, Arkansas, Iowa, Kentucky, North Carolina and Indiana passed similar versions of Florida’s “Don’t Say Gay” law, which bans classroom discussion of sexual orientation and gender identity. Other radical efforts in Florida have been derailed, though they could still be duplicated by other states. A DeSantis-championed effort failed to dismantle key protections for journalists and others who criticize politicians and public figures. Legislation to essentially criminalize drag shows with minors in the audience was frozen by the courts. Regardless, the law has had a chilling impact across the state.

California Makes Strides in Safeguarding Free Expression, but its Push for Online Regulation Raises Risks

California has leveraged its size, progressive bent, and position as home to the film, television and tech industries to wrestle with policy questions over the free exchange of ideas and uninhibited creative pursuits; its policies have spurred left-leaning states to similar action, according to The California Effect. The state’s Decriminalizing Artistic Expression Act, for example, has breathed life into similar efforts in New York and on the federal level to limit the use of rap lyrics in criminal trials.

Allison Lee, PEN America’s Los Angeles director, said: “California is the home of Hollywood, of Silicon Valley, and of over 10% of the American population. These facts alone ensure that the state takes a leading role in developing policy solutions to some of America’s biggest free speech-related challenges. It also means that the state has a special obligation to ‘get it right’: to craft free expression-friendly policies that are thoughtful, actionable, and replicable. This report identifies which policies meet that standard, which require further thought, and which should be jettisoned.”

Among the strongest of California’s legislation, PEN America determined, are the Decriminalizing Artistic Expression Act and Senate Bill 98, which protects journalists’ rights to cover protests. These efforts to decriminalize artist expression and protect press freedom  “should be not only lauded but copied elsewhere.”

On social media regulation, aspects of California’s legislative approach are laudable, especially with regard to mandating increased transparency of tech platforms to the public and user protections; however as currently framed, these laws “create a significant risk of undue influence by the government over online speech,” the report states.

The state’s anti-book banning bill, the report says, “may offer a blueprint for states looking to safeguard access to information in schools and libraries, but should be adopted only after developing thoughtful enforcement mechanisms.” But the state’s recently approved DEIA (Diversity, Equity, Inclusion and Accessibility) Community College mandates introduce vague new criteria  to academic instruction that threatens to chill academic freedom.

About PEN America 

PEN America stands at the intersection of literature and human rights to protect open expression in the United States and worldwide. We champion the freedom to write, recognizing the power of the word to transform the world. Our mission is to unite writers and their allies to celebrate creative expression and defend the liberties that make it possible. Visit: pen.org

Contact: Suzanne Trimel, [email protected], 201-247-5057