State Legislatures Eye Regulating Social Media in Wake of ‘Big Tech Censorship’
Gen-X cultural reference incoming: Roger & Me. For those too young to remember, Roger & Me was a 1989 documentary akin to a long opinion piece on film in which Michael Moore (a newcomer at the time) attempted to have an “impromptu” meeting with then-CEO of General Motors Roger Smith. The premise was that Moore wanted to ask Stone why GM had made the decision to close the auto plant in Flint, Michigan and move its operations out of the country when the plant had made record profits the previous year. The subtext was that Stone was dodging Moore and, by extension, the blindsided working class of Flint.
At several points in the film, Moore and his crews are asked to stop filming and leave GM property; it approaches a running joke as Moore tries to figure out clever ways to get in to see Smith but keeps getting booted out by square-jawed, firm-spoken GM representatives.
I preface this post this way because, shabby as his treatment was, Moore didn’t subsequently recruit the legislature of the State of Michigan to file bills that would make it illegal for GM or any other concern to remove a documentarian from its property if the filmmaker wanted to stand around and point out how shady the company’s dealings were. Moore knew he was on private property and, though I’ve never asked him, I’d bet the reaction he got on film was part of the point he was trying to make.
Social Media Banning
Fast forward 30 years and we’re arguably in an era where just that sort of recruitment is suddenly going on in state legislatures around the country. In the wake of election-related violence at the US Capitol on January 6—violence many lawmakers and observers say was encouraged by conspiracy-theory spreading media users on the political right—social media companies like Twitter and Facebook suspended the accounts of many users, most notably that of then-President Donald Trump. The decidedly un-Trumpian ACLU expressed concern that the purge might have been overkill.
In reaction, lawmakers expressly sympathetic to the ex-President and others likewise banned for what conservatives believe to be political reasons have filed a slew of legislation at the state level to prohibit such social media banning in the future.
In my own state of Iowa is one typical bill—House File 633—which reads in part:
Prohibition on censorship— 1. A dominant social media company shall not affect the ability of a user to create, view, comment, or otherwise interact with content that constitutes constitutionally protected speech on the dominant social media company’s social networking website by limiting , blocking, or otherwise restricting any content on the social networking website or the user’s access to the social networking website. 2. Within thirty days after a dominant social media company violates subsection 1, the dominant social media company shall provide the user with electronic notice that explains why the user’s content was limited, blocked, or otherwise restricted, or why the user’s access to the social networking website was restricted.
The bill goes on to state that a social media company that fails to abide by the law will get slapped with a $100 thousand fine for each violation, with the state’s attorney general acting as enforcement agent.
As of this writing, it appears that similar or related social media “anti-censorship” bills are in consideration in 29 states. For the reader’s ease of review, here are just a few of them:
- Florida—HB 33; This bill specifically prohibits using “hate speech” as a reason for account suspension.
- Minnesota—SF 1253
- North Dakota—House Bill 1144
- Oklahoma—SB 383; Analysis of the bill.
- South Carolina—Bill 551
- Texas—SB 2373
- Utah—SB 228; Analysis here.
Many of the bills use very similar language, referencing “unfair trade practices” and “censorship.” Several bills would require social media platforms to warn users of their specific electronic speech transgressions and give violators a grace period to clean up whatever part of their act that would see them banned. Some bills empower the banned to file consumer complaints with state attorneys general or, like Texas’ SB 2373, to file suit.
The overarching problem with these bills was summed up by Shoshanna Weissman, Senior Manager and Fellow of R Street, a DC-based non-profit public policy research organization, when she spoke to The Missouri Times about Missouri’s legislative effort regarding social media:
“Aside from legislation like this making social media websites completely unusable, they’re blatantly unconstitutional under the First Amendment. Just as there is no ‘hate speech’ exception to the First Amendment, which applies to government actions, the government also cannot mandate ‘hate speech’ — or any speech in particular — remaining on the platforms created by private companies. The proposal is chilling, bizarre, and unconstitutional.”
“Private companies” is Weissman’s key point here. Just as prevailing court interpretations of the First Amendment would proscribe any law drafted with the idea to force General Motors or other private concerns to allow someone like Michael Moore to stand in their lobby and complain about GM’s policies (and perhaps attract crowds of fellow-travelers to echo and magnify his sentiments), so would any serious legal challenge to these pieces of social media-related legislation almost certainly show that social media platforms cannot be forced to allow speech or expression that, for good or ill, some tech nerd working for the company doesn’t want to allow there. Capitalism gives proprietors that right (within the boundaries of civil rights and public accommodations law), and Twitter and Facebook rely on that power to maintain the environment they (and their advertisers) desire.
The legal waters surrounding exactly what makes up a “public forum” have already been muddied. The courts have already decided that the private Twitter feed of a public figure like a US President is a public forum if that figure uses his or her private account to conduct official business or issue official communications. Despite that, it remains for someone who wants to force social media companies to become free-speech free-for-alls to figure out how to legally redefine private timelines and feeds as public forums more generally. Until then, the constitutional status of these state-level bills remains tenuous.
A step up from the state level action is ongoing debate regarding Section 230 of the 1996 Communications Decency Act. Last summer, Missouri Senator Josh Hawley introduced the “Ending Support for Internet Censorship Act,” aimed at removing Section 230 protection from social media companies who refuse to prove that their content-moderation practices are viewpoint-neutral.
Hitting at Section 230 is a big deal: Section 230’s intent is to shield Internet providers from civil liability if a user of their services posts something illegal. The Section has been interpreted to mean that platforms like Facebook don’t have to police everything its billions of users post to remain safe from lawsuits resulting from illegal content slipping through. Without Section 230 protections, say its defenders, Facebook and Twitter would be impossibly risky to maintain. Those who criticize the protections say that it is misapplied as a shield from legal consequences and allows the platforms to engage in overtly politically biased censorship, silencing conservatives.
Those concerned about freedom of expression and government overreach will need to watch this debate develop.
Darryl Eschete was born in South Louisiana into a Cajun family, raised in the Bayou region of the state. His undergraduate degree is in journalism and has a deep and serious interest in First Amendment issues, including censorship, compelled speech, institutional neutrality and professional ethics. He has 20+ years of library work experience, including 10+ as a public library director.