CDA S. 230 Debate Spreads in State Legislatures

At least 35 states introduced more than 100 bills this year on restricting social media content, as of Friday, said a National Conference of State Legislatures paper. Approaches include banning state government contracts with companies that censor content; prohibiting sites from censoring users’ or candidates’ religious or political speech; and giving social media users a right to sue over this. Other state measures urge Congress to repeal Section 230.

“Proposals to regulate big tech, and specifically social media platforms, are popular this term,” said Jonathon Hauenschild, American Legislative Exchange Council's Communications and Technology Task Force director. Plans exist in Democratic- and Republican-controlled state legislatures, but the parties have different concerns, and the legislation shows the most movement in GOP states, he said. Bills “range from requiring greater transparency and disclosure of content moderation practices, community standards, and terms of service to absolute prohibitions of moderating ‘political’ or ‘religious’ content,” he said.

A Texas bill allowing private lawsuits against social media companies that moderate content passed the Senate earlier this month (see 2104010029). SB-12 awaits action in the House, which has two similar bills (HB-2587, HB-3106). Florida's HB-7013 and SB-7072 would make it unlawful for social media sites to deplatform political candidates, while requiring sites be transparent about how they police users. HB-7013 is on Tuesday’s House calendar.

Republicans sponsored the Texas and Florida bills, and the Democratic state senator behind Colorado's net neutrality law sponsored SB-132. The Senate passed that bill last month after Senate President Pro Tempore Kerry Donovan (D) agreed to modify her bill to require only a study on regulating social media (see 2103230070). The House State Committee plans to hear the bill Thursday. Texas, Florida and Colorado bill sponsors didn't comment.

“Democrats tend to be concerned about the influence of technology companies, especially in elections,” such as Russian efforts to influence the 2016 election, said Hauenschild, citing bills in California, Connecticut, Maryland and New York. Republicans say social media companies are moderating too much content, especially conservative material, he said. That includes Republicans upset about major platforms banning then-President Donald Trump after the Jan. 6 Capitol Hill riot, he said. Texas and Florida bills may have influenced similar measures in Minnesota, Alabama, Montana, South Carolina and Utah, he said.

Section 230 is federal law, and state laws can be enforced only if they don’t conflict with a federal law, said Public Knowledge Legal Director John Bergmayer: “A number of state legislators have got it into their heads that they can reverse preempt,” but the statute must clearly state such. Based on case law, platforms have a First Amendment right to block, censor or remove any users they want, and Section 230 gives “procedural protections” that strengthen that underlying right, he said. “Any attempt legislatively to limit the editorial discretion of platforms is almost certainly going to be considered unconstitutional." If there’s disagreement about what’s hate speech, that’s the platform’s call to make, he said: The government has no legal ability to define that.

Many state proposals mirror “blatantly partisan” attempts on Capitol Hill to alter intermediary liability protections to fit particular political narratives, said Information Technology and Innovation Foundation Policy analyst Ashley Johnson. Republicans believe platforms are too heavy-handed when moderating content, and Democrats don’t think they’re doing enough to remove harmful content, she said: Both parties want Section 230 updated.

The amended Colorado proposal could have benefits for states and nongovernmental entities, Johnson said. She welcomed more studies on whether platforms are doing enough to moderate harmful content. But the Florida proposal is a particularly egregious example of partisanship, she argued, saying it’s motivated by the suspension of Trump’s social media accounts. The authors haven’t “fully thought through the consequences” it would have on the internet, she said. The Constitution's commerce clause clearly says Congress has the power to regulate interstate commerce, and the internet is a “perfect example,” she said.

“If there is one word to describe the state of the debate ... it’s ‘confused,’” said Free Press Vice President-Policy Matt Wood. “People are seeing problems and rightfully saying that these companies have a lot of power and control,” but “oftentimes their solutions are mistargeted or ... outright harmful,” he said. Wood prefers “smart federal laws” over multiple state laws, but it’s “fair and right” for states to seek to protect their citizens in the absence of federal laws, he said.

Elements in some state proposals are likely unconstitutional, said Free State Foundation President Randolph May. He drew a distinction between mandating transparency and attempts to limit censorship, saying the former is less likely to be unconstitutional. States shouldn't adopt their own laws, creating a patchwork, he said: “There’s just too much speech that’s within the realm of legitimate debate that’s taken down.” Platforms are “significant public spaces,” he said. “I don’t like to see this public space narrowed more than it should be.”

Florida

Democratic and Republican Florida senators ripped into SB-7072 at a Monday hearing. The Appropriations Committee split 10-9 to clear the bill.

“This is a big government bill," said Sen. Jeff Brandes (R). “As a small-government conservative body, this is the exact opposite of the things that we stand for.” Brandes raised “severe” concerns, including that the bill could be unconstitutional and that the state would likely be preempted, he said. “I don't understand how 50 states can have 50 different Twitter rules.”

“Don’t you think a business that's providing free access ... ought to have the right to decide what they're going to allow and what they're not going to allow?" asked Senate Democratic Leader Gary Farmer, comparing the bill to socialism. “This is to me so clearly unconstitutional.” Farmer sees no compelling state interest.

Sponsor Sen. Ray Rodrigues (R) calls himself a free-market proponent, but “a monopoly is not a free market,” he said. “This is not a platform that values free speech. This is a platform that values speech that they like, but not speech that they don't like." Florida has “consumers who are being deplatformed" with "no idea why."

Rodrigues agreed businesses generally should run companies as they choose. He said in this case, Florida has a duty to ensure that powerful social media companies aren’t discriminating against citizens.