Various States All Pile On To Push Blatantly Unconstitutional Laws That Say Social Media Can't Moderate

from the that's-not-going-to-go-well dept

A bunch of Republican state legislators across the country are apparently unconcerned with either the 1st Amendment (or reality) have decided that they need to stop social media companies from engaging in any sort of content moderation. Earlier this week, Florida Man Governor Ron DeSantis proposed just such a law, which would be struck down as unconstitutional with amazing speed. The bill, dubbed the "Transparency in Technology Act" would do a bunch of things laid out in this infographic the Florida GOP sent around, almost all of which the state has no authority to do. On the content moderation front, it would require set standards for content moderation that can't easily be changed and require the company apply those standards consistently.

That's what lots of people ask for without realizing that's an impossible ask. "Consistency" is not nearly as clear as people seem to think it is. Every scenario is different, and context plays a huge role in determining these things -- but people who complain about inconsistent enforcement never seem to recognize the wider context, and always focus in on some superficial similarity about the content, and insist that different outcomes mean inconsistency. It also ignores the scale of the problem. It also fails to take into account that policies have to keep being updated, because the issues that trust and safety teams face constantly are changing.

This bill would be like passing a law saying that the state of Florida must clearly define all its laws, can't pass new laws, and must apply the law consistently. That's not possible.

Even more ridiculous (and more unconstitutional) is that the bill would bar any moderation (or removal) of any political candidate. Of course, this would just mean that any troll who wants to be a total asshole online would register to run for office. Remember, it was rumored that well known online troll Laura Loomer supposedly ran for Congress in part because of she believed that it would force Twitter to give her her account back (which did not happen).

Of course, it's easy to just point at Florida and say "there goes Florida again..." but it's actually Republican legislators in a whole bunch of states. And this wasn't even the first such bill in Florida. A week or so earlier, Republican state Senator Joe Gruters introduced a bill called the "Stop Social Media Censorship Act" which bars any moderation of "religious or political speech."

Gruters may have introduced the bill, but it doesn't look like he wrote it. Because in Kentucky, Republican Senators Robby Mills and Phillip Wheeler introduced a nearly identical bill. Oh, and over in Oklahoma, Republican Senator Rob Standridge also introduced an identical bill. In Arizona, it's Senator Sonny Borrelli who has introduced very similar legislation, though his looks a little different, and (insanely) would try to put into law that a social media website is "deemed to be a publisher" and "deemed not to be a platform" which is, you know, not a thing that actually matters. In North Dakota, there's Republican State Rep. Tom Kading who's similar bill also includes the nonsense publisher/platform distinction.

All of these bills are (1) nonsense, (2) pre-empted by federal law, and (3) blatantly unconstitutional under the 1st Amendment. A quick lesson for state legislators: the 1st Amendment means that the government (that's you!) cannot compel private parties (that includes social media companies!) that they have to host speech with which they disagree with. There's plenty of case law on this, but I'll point you to West Virginia State Board of Education v. Barnette which establishes quite clearly that the government cannot compel speech under the 1st Amendment. On top of that, I'll point people to the relatively recent ruling, written by Brett Kavanaugh (remember, Republicans, you supported this guy) and signed by all of the Conservative Justices, in the Manhattan Community Access Corp. v. Halleck case, in which it was made clear that social media websites are not state actors, and cannot be compelled to host speech. As Kavanaugh wrote in that ruling:

In short, merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.

If the rule were otherwise, all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints and would lose the ability to exercise what they deem to be appropriate editorial discretion within that open forum. Private property owners and private lessees would face the unappetizing choice of allowing all comers or closing the platform altogether. “The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use.” ... Benjamin Franklin did not have to operate his newspaper as “a stagecoach, with seats for everyone.” ... That principle still holds true. As the Court said in Hudgens, to hold that private property owners providing a forum for speech are constrained by the First Amendment would be “to create a court-made law wholly disregarding the constitutional basis on which private ownership of property rests in this country.” ... The Constitution does not disable private property owners and private lessees from exercising editorial discretion over speech and speakers on their property

Remember how, as Republicans, you guys used to always support private property rights and the right to exclude those you disagree with? It's that all over again, except now you're suddenly trying to argue the exact opposite.

It wouldn't surprise me if there were a bunch more of these unconstitutional bills floating around, or that more will be introduced soon. Most of them are performative nonsense that no state legislature will actually pass. But if they do, just recognize that any legislature that does so is throwing away taxpayer money on a series of expensive lawsuits that will inevitably end with the law being tossed out as unconstitutional.

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Filed Under: 1st amendment, arizona, content moderation, florida, joe gruters, kentucky, north dakota, phillip wheeler, rob standridge, robby mills, ron desantis, section 230, sonny borrelli, states, tom kading


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  1. icon
    Stephen T. Stone (profile), 5 Feb 2021 @ 2:06pm

    Government take over of "online public squares" is not exactly a bad thing in and of itself.

    When such a takeover involves the government assuming both ownership of private property and control of the service offered by the owners of that property, it damn well is a bad thing.

    There is legal precedent for this government forced community merging too: Desegregation.

    Desegregation was about giving Black Americans access (or at least a greater amount thereof) to the same civil rights that white Americans enjoyed at the time. Access to social media is not a guaranteed civil right. Nobody is entitled to use Twitter, Facebook, etc.

    Don't think it's warranted? "Oh, sure they can speak wherever they like, just not here." "Go build your own site, if you want service." "We don't serve trolls here." I'll let you fill in what should be the historical words in those italics. And yes, both sides are actively trying to erase the other one.

    Unlike food and shelter and employment, social media isn’t essential for living. Being refused service at a restaurant or a hotel based only on your skin color is nowhere near the same thing as being booted from Twitter for violating its ToS. The comparison has no foundation. Don’t make it again, unless you want me to think you’re a racist who is really pissed off that you can’t say the n-word on Twitter.

    Don't like it because it could go really badly for you when the adults decide to enforce rules you disagree with?

    It could go really bad for everyone if the government gets the right to control what Twitter, Facebook, etc. can and cannot, will and will not, must and must not host. That includes you, me, and every other commenter on this site.

    Yes or no: Do you believe the government should have the legal right to compel the owner of any private property into hosting legally protected third party speech that the owner of said property don’t want to host? Please note that “private property” isn’t limited to cyberspace/websites — I’m also referring to tangible private property such as public accomodation businesses, private residences, and apartment buildings.

    Yes, that means there will be sites you disagree with. No, that does not mean you get to take them down and then whine and banhammer when all of those whom you've forced out of their meeting places start intruding on yours.

    Regardless of what you might think, I don’t generally want those kinds of sites taken down unless they’re advocating for illegal acts. It’s why I had no problem, legally and morally, with Amazon giving Parler the boot. But I’m well aware of the existence of sites like Stormfront, 4chan, InfoWars, and other alt-right garbage. My not liking them is no excuse for seeing them taken down.

    The idea that the government could force other websites to host speech from the users of those sites isn’t any better. Without moderation controls in place to stop trolls, racists, etc. from overwhelming a site with their bullshit, all the users who don’t want to put up with it will leave the service for something else. The site will then be left to solve the “Worst People Problem”, and the only real solutions to that are “kick them out and institute actual moderation” or “shut down the whole thing”.

    You can’t have both “neutrality” towards all legal speech and a service that a broad audience will want to use. After all, you won’t get a lot of gay people using your service if you allow anti-queer advocates to push their shit on gay people unchecked. Government-enforced “neutrality” would require you to do exactly that. You would be forced by law to validate positions with which you don’t, won’t, and even can’t agree by way of hosting them on your service.

    Yes or no: Do you want the government forcing you to host advocacy for the reënslavement of Black people, government-backed executions of gay people for being gay, and forcing women to give birth against their will on a social media service you own and operate?


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