Republican state legislators across the country are eyeing new restrictions on the type of content that major social media companies can police.
In the absence of federal action on tech reforms, the state-level proposals are leaving industry experts worried about a patchwork of regulations and a flood of litigation.
Legislators in at least 18 states have considered bills that would impose penalties for censorship or content limits based on ideological viewpoints. The specifics vary, but many of the proposals would allow users who believe their views have been censored or silenced to bring lawsuits in state courts.
“By preventing Big Tech companies from continuing to engage in viewpoint discrimination, we hope to protect the free exchange of ideas and information in Ohio,” Ohio state Rep. Scott Wiggam (R) said at a recent committee hearing introducing his state’s version of the measure. He called it “an anti-discrimination bill, at its heart. It will prevent Big Tech from censoring the expressions of Ohioans based upon their point of view.”
An Ohio state House committee advanced the measure last week, sending it one step closer to a floor vote.
Only two states have passed measures restricting the activities of social media companies. In both those states — Florida and Texas — judges have issued rulings blocking the new laws after challenges from technology industry groups.
Other states are undaunted by the court challenges. Bills targeting social media companies have advanced in the last year in Oklahoma, Iowa, West Virginia, Idaho, Utah and Louisiana. Only in Utah did the measure actually reach the governor’s desk, though Gov. Spencer Cox (R) vetoed it last year.
Other bills have been introduced, but died or did not advance, in Arkansas, Alabama, Kansas, North Dakota, South Dakota, North Carolina, Nebraska, Missouri and Kentucky.
West Virginia’s version of the measure would prohibit censorship of political candidates. The bill’s sponsor, Del. Daniel Linville (R), said his goal was to bring social media companies in line with more traditional media companies that sell or allow political advertising on their platforms.
“If you owned a billboard company, you couldn’t just take out a billboard that advocated for the support or defeat of a particular candidate or ballot question or whatever without reporting it and being subject to limits,” Linville said in an interview this week. “It’s essentially trying to level the playing field as it would be with any traditional media.”
Linville’s bill passed the state House of Delegates last year, though “a little late,” he said, for its consideration in the state Senate. He said the bill is likely to come up again when legislators reconvene next year.
Tech industry experts and advocates see the bills as a long-term threat to their business models.
“These bills seem intended to restrict social media platforms and their ability to monitor and take action on content that is posted on the platforms,” said Paul Lekas, senior vice president for global public policy at the Software and Information Industry Association, a leading tech industry advocacy group. “What you’re going to see is a large number of class-action strike suits where harm is mostly theoretical, and the costs are going to go up significantly on these companies, and at some point those are going to have to be passed on to individuals.”
One industry insider, who asked not to be named assessing the legislation that involves his company, said forcing social media outlets to justify their decisions to moderate specific instances of content — the bulk of which are made by computer algorithms — would open those companies to legal harassment.
“It’s not practical and it’s not constitutional for platforms to be held liable for every individual content moderation decision when there are hundreds of billions of items of content being shared daily,” the insider said.
Republicans have long accused Big Tech companies of silencing or downplaying their voices, even before platforms like Twitter and Facebook kicked then-President Trump off their sites in the wake of the Jan. 6, 2021, insurrection at the U.S. Capitol.
Candidates now routinely post inflammatory rhetoric and then paint themselves as modern-day martyrs. And pundits who spread misinformation about the 2020 elections or the coronavirus pandemic, among other conspiracy theories, have become heroes on the far right when they are de-platformed.
The debate over new bills barring censorship is routinely simplified into a debate over the First Amendment and whether online platforms amount to a public forum in which Americans have the right to speak freely.
“This is not necessarily about the free speech of a company, this is about the free speech of individuals who are engaging on what they believed were common carriers and basically your public square where dialogue and speech happens in our modern day,” Wiggam said at the hearing.
Those who oppose the new bills flatly reject that argument, citing federal law that absolves them of responsibility for information posted on their platforms by individuals.
“The First Amendment applies to state action, and these companies are not arms of the state,” Lekas said. “It is somewhat ironic that you have proponents talking about preserving free speech when what the bills would do would be to infringe on the free speech of these companies.”
Facebook and other companies have called for reforms to that federal law, Section 230 of the Communications Decency Act, passed in 1996. But Congress has been unable to advance any such reform, leading to fears that the states will take action first.
“Social media companies are global companies, and we believe any regulation should be done at the federal level,” said Brian Waller, president of the Technology Association of Iowa, which has lobbied against his state’s version of the bill.
“The internet is not confined to any one particular state,” Lekas said. “There are certainly ways to moderate access and content to focus on additional protections for certain populations, such as children. But to have a different set of rules of what’s available on the internet in Ohio versus what’s available on the internet in Michigan is unworkable.”
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