Republican legislation meant to stop censorship on social media platforms could backfire and result in less conservative speech and a number of onerous lawsuits that will hamstring their goals, conservative lawyers say.
Republican-controlled legislatures around the country have passed laws or are pushing for bills that would restrict Big Tech companies such as Facebook and Twitter from moderating content or blocking users on their platforms. Lawmakers in Texas, Florida, Arizona, and North Dakota have introduced bills that mandate greater transparency in regard to content moderation and prevent social media platforms from canceling conservative speech. Utah’s Republican governor is expected to approve such legislation shortly.
If the anti-censorship bills become law and are enforced, social media platforms will be incentivized to change their content guidelines and rules to restrict more content out of an abundance of caution, conservative lawyers say. This would reduce the likelihood of platforms getting sued, the lawyers said, while also meeting the needs of a majority of their users who want the removal of content that is false, misleading, or violence-inducing to be removed.
“It’s ironic that these laws are in the name of free speech, but if you enforce them, it’s going to result in less speech online,” said James Czerniawski, a tech policy analyst at Libertas Institute, a conservative think tank in Utah.
“In reality, conservatives would lose out from it, and the laws would harm conservative voices, which is a shame,” said Czerniawski.
However, conservative lawyers say that there is little likelihood of such bills actually being enforced, even if they do become law, because they are unconstitutional.
“These laws are very clearly not going to hold up to judicial scrutiny. And anyone who practices the First Amendment can tell you that pretty quickly,” said Ari Cohn, a Chicago attorney who specializes in First Amendment law.
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Cohn said that the First Amendment not only grants individuals and organizations the right to free speech but also grants them the right not to say or publish content they may not want to. The Supreme Court has held in multiple cases, including National Institute of Family and Life Advocates v. Becerra, that laws that attempt to compel speech on social media platforms or elsewhere violate the constitutional right to free speech. The supremacy clause of the Constitution would ensure that the First Amendment supersedes the anti-censorship bills that Republicans are pushing.
Republican state legislators pushing anti-censorship legislation say that their legislation would uphold the spirit of the First Amendment.
“I think it’s the exact opposite. I think this protects the First Amendment more than anything else. This is a free speech bill,” Utah Republican state Sen. Mike McKell told FOX13 in Salt Lake City. McKell is the lead sponsor of the anti-censorship bill in Utah, S.B. 228, which has passed the state House and Senate and is expected to be approved by the governor within the next two weeks.
Besides the First Amendment, Cohn added that most of the anti-censorship bills also run afoul of Section 230 of the Communications Decency Act, a provision that protects social media companies from liability for content posted by their users. The law allows online platforms not to be responsible for user-generated content, and so they cannot be sued for their content moderation practices.
“It’s basically just a great opportunity for performing and showboating. State legislatures are trying to say, ‘Look at me, I’m doing something about censorship,’ but they’re really not,” said Cohn, who is also a senior adjunct fellow at TechFreedom, a nonpartisan technology think tank.
Many conservatives, nevertheless, are upset with social media companies, particularly after former President Donald Trump was banned from most major social media platforms for his alleged role in the Jan. 6 U.S. Capitol attack. This is the cause for most of the anti-censorship state bills.
“The big reason for all of these laws across the board is to try and harm Big Tech companies. It’s very obviously about that,” said Shoshana Weissmann, a tech policy expert with the R Street Institute, a libertarian think tank.
She added that the “malice against tech companies” would hurt smaller tech companies and social media startups that cannot afford to comply with the complicated new rules and regulations outlined in the anti-censorship bills. Social media giants such as Facebook and Twitter would not be disadvantaged, though, Weissmann said, and such bills would only help them to be more dominant.
As more Republican legislatures push for laws to reduce censorship, pressure is increasing to create federal legislation to address the issue of social media content moderation by reforming Section 230 rather than a patchwork of inconsistent state laws.
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“Content is internet is fundamentally border-less, it crosses state boundaries, so we really need legislation nationally otherwise you impede innovation and create confusion,” said Jennifer Huddleston, head of tech policy at the American Action Forum, a conservative think tank.
Editor’s note: This story has been updated to correct the description of the status of the Utah legislation, S.B. 228.
