Republican-Governed States Can Stop Social Media Censorship

Social media censorship can be stopped immediately by states controlled by Republicans (meaning both legislative chambers and the governor).   Here’s how, from an attorney.

Legislation has been introduced in the North Dakota legislature to prohibit social media companies from censoring messages and posts, as reported by Breitbart and ARS Technica.

See:  North Dakota Bill Would Let Censored Citizens Sue Facebook, Twitter.  So you can follow developments, it is “an Act to permit civil actions against social media sites for censoring speech.”

Alas, the legislation is not well-written.  The penalty is too small, a slap on the wrist, to get Facebook’s or Twitter’s attention.  The concepts are like a first draft.  It fails to harmonize with Federal law Section 230 of the Communications Decency Act of 1996, at 47 U.S.C. § 230.

But it is a bold move aimed at real results by Republicans who want to solve problems.  A sharpened version could bankrupt the censors as they attempt to impose despotism on the Land of the Free.  Hopefully, other States will follow the example.

Censored users could receive “treble [triple] damages for compensatory, consequential, and incidental damages.” But damages one could prove would be very small.  Similar legislation would need to impose much larger minimum punitive fines like $100,000 per incident.

The legislation would provide that websites with over 1 million users would be “liable in a civil action for damages to the person whose speech is restricted, censored, or suppressed, and to any person who reasonably otherwise would have received the writing, speech, or publication.”  Lead bill sponsor Rep. Tom Kading said, “It's just wrong to ban a sitting president.”

More controversially, perhaps legislation could provide a right for anyone world-wide to sue in the state on the theory that people in North Dakota were denied the opportunity for open dialogue and exposure to different ideas.

Meanwhile, Poland's Prime Minister Mateusz Morawawiecki harshly criticized Facebook, Twitter, and other social media on January 13, 2021.  Reportedly, legislation was introduced in Poland’s parliament on January 15, that would allow anyone who has been a victim of social media censorship to be paid a fine of $2.2 million.  This allows application to a court, so that it would not depend upon waiting for a government official to show diligence and honesty.

However, this proposal has gotten almost no coverage in the mainstream media and your author cannot find it in English translations of Poland’s newspapers.  The harsh speech on camera by Poland’s Prime Minister does lend credibility to alternative news reports.

If enacted, Poland’s $2.2 million fine would start to seriously sting Facebook’s and Mark Zuckerberg’s profitsJust 1,000 successful cases would be a $2.2 billion hit to Facebook’s or Twitter’s bottom line.  If only 10,000 of Poland’s 37,865,542 population pursued their remedies with a strong financial incentive, Facebook would have to pay $220 billion.

A significant drop in profits would cause share prices of Facebook to fall.  Facebook’s shareholders would have a right to sue for decisions by Facebook’s leaders that are not based on business reasons but on politics, causing losses to shareholders.  Because most of the non-Zuckerberg shareholders are investment companies re-investing other people’s savings, they would have a legal obligation to sue Facebook.

Most significantly, other countries would quickly follow Poland’s example and other states, like Texas and Mississippi, could follow North Dakota’s example.  Mexico’s President has harshly condemned Twitter’s and Facebook’s censorship of President Trump.  Twitter has picked a fight with Uganda over Uganda’s allegations of digital manipulation of its elections.  This fire could spread.

Note, that one of the many abuses by Facebook is that you cannot object or appeal their dishonest but arbitrary decisions.  Poland's and North Dakota's laws would require implicitly or explicitly that social media companies respond to an objection and allow an appeal and explain.

Your author is currently blocked on Facebook for posting a famous image of Hitler looking over the map table with his generals, with the caption

"Facebook looking over my account for a reason to block me."

For that, Facebook blocked me.

And when I click on "I disagree," enter my explanation, and hit submit, Facebook gives an error "We cannot process your request at this time" (paraphrase).  For a year and a half this function has not worked for me.  So, there is no ability to draw to a human's attention that their algorithms or a non-English speaker in a third world country made a bad call.  Since COVID-19, Facebook says they can no longer provide an appeal (a different function) because of the pandemic.  Since this is the quintessential work-from-home job and millions of people are out of work, and people locked up at home are using social media a lot, Facebook's excuse for not allowing an appeal from their censorship is an obvious lie.

Now, there are important and valid reasons why social media must be able to delete some posts and perhaps even ban repeat offenders.  Obscenity, child pornography, ordinary nudity or sexual activity (Facebook’s official minimum age for members is only 13 years old), invasion of privacy / doxing of private information, criminal activity, advertising criminal activity, or facilitating criminal activity, or the like.

Therefore, the legislation has to be written carefully to allow policing of social media on one side of the balance while prohibiting censorship based on the poster’s beliefs, religion, politics, etc. on the other side of the balance.  Under the well-established legal tests, it is almost impossible for any speech to count as incitement to violence.

However, the most important question is whether such a State law would be pre-empted by Section 230, which is a federal law.  Federal pre-emption of state law is a tricky thing and can have various twists and turns.  Like most things in the law, it is not as straightforward as it sounds.

First, if you read all of 47 U.S.C. § 230, not just the popular snippets, it is very clearly aimed at preventing crime, exploitation of children, obscenity, etc.  Taken as a whole, Section 230 cannot be properly interpreted as justifying censoring political beliefs.  An honest, diligent court would read the entire Section 230 including the Congressional findings and say that Section 230 does not say what the tech giants want you to think.  The focus of Section 230 is narrow.

Second, a State law should define the vague and loose terms, such as:

"any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected."

A state law should define "good faith" to make clear that viewpoint discrimination based on politics, religion, or other beliefs of the poster are excluded as never being in "good faith."  Furthermore, “good faith” in the law requires an objective, external standard, not personal subjectivity.  This clarification by the state would not conflict with the federal law.

This is strengthened by the wording of the statute that it immunizes an "action" "taken in good faith to restrict access to or availability of material..."  So, the good faith must be narrowly targeted on that specific purpose.  It cannot be good faith about what someone thinks is best for society.  The good faith must be narrowly focused on the rest of the sentence.

Third, Section 230 concerns:

"material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”"

Social media companies are relying upon the “otherwise objectionable” term to mean they can do anything they want.

But this comes under the rule of statutory interpretation of Noscitur a Sociis.   If there is a list of specific things and also an open-ended item, the open-ended item must be interpreted consistently with the specific items named.  So, one must interpret "or otherwise objectionable" consistently with "obscene, lewd, lascivious, filthy, excessively violent, harassing."  "Otherwise objectionable" cannot be interpreted as whatever Facebook feels it wants to do.

For example if a job announcement said:  "We are looking for graduates who have made the Dean's list, an average grade of A-, graduated successfully from Advanced Placement courses or had other achievements"   “Other achievements” would not include winning a hot dog eating contest or burping contest.  Only clearly academic achievements in an educational institution would qualify, because that is focus of the list.

Therefore, a state law could define "or otherwise objectionable" as being only those reasons that are substantially similar to “obscene, lewd, lascivious, filthy, excessively violent, harassing,”  and explicitly prohibit discrimination on the basis of political points of view or advocacy for any (non-criminal) cause or belief.

While that would further nail the Jello down to the table and avoid social media and courts playing games,  the state law could not be easily challenged as being pre-empted by the Federal law Section 230.  A state law should define ambiguous and vague terms. 

Graphic credit: Jason Howie CC BY 2.0