An Absurd Idea to Regulate Social Media

The 92nd session of the Arkansas General Assembly convenes next month. Even though legislators haven’t yet met in Little Rock, I may have found the most absurd bill of this session: a proposal by Rep. Johnny Rye to censor social media companies.

Taking a page from Elizabeth Warren and other foes of the free market who do not respect private property, Rep. Rye wants to use the power of government to force these businesses to carry out a certain ideological agenda.

Rep. Rye’s bill, HB 1028, is being put forward as legislation to combat what he calls “censorship” by social media companies of political or religious speech. It appears that Rep. Rye does not understand that companies like Twitter and Facebook are private companies, not government entities. Censorship occurs when government tells people, under the threat of force, what to say. These companies are not engaged in anything like that. They are simply curating the content that users post on the media infrastructure owned and operated by the companies.

Rep. Rye tries to get around the fact that these are private companies by using one sentence in his bill to declare social media websites to be “public utilities.” That is a sweeping assertion of government power against private businesses. Of course, this is probably just a sentence put in there as a fig leaf of justification to censor speech, since the bill has no other provision outlining the state regulation of these companies as public utilities.

In fact, the bill’s main aim is to provide an Arkansan with the ability to sue a social media company if that company deletes or “censors” that person’s political or religious post. Such violations could be punished by judgments of up to $75,000 per incident, as well as “actual damages” (though it is difficult to see how anyone could suffer a monetary loss due to Facebook removing their political post). For someone who voted in favor of SJR 8, the tort reform amendment aimed at curbing frivolous lawsuits — as Rep. Rye did — this appears hypocritical.

This is also deeply troubling to anyone who cares about free speech. As private businesses, these companies have no obligation to provide a platform for anyone to speak. They only provide this platform in alignment with their terms of service, which you agree to when you sign up. If you violate their terms of service, your posts can be removed. If Rep. Rye applied his legislation to newspapers, you could sue every time the local paper rejected your letter to the editor or even edited it. If this legislation applied to organizations such as the American Legion, they could not refuse to rent their space to neo-Nazis who wanted to use it for a political rally. This bill is about compelling private businesses to allow anyone to use their infrastructure to spread their views. That is a huge expansion of government power over our speech.

The roots of this bill are likely to be found in the instances, whether alleged or real, where Facebook or Twitter or Google either removed conservatives from their platform or otherwise appeared to disfavor conservative speech. While I may disagree with some of these actions, the answer to any problems that exist is not to give people the right to sue. Like all businesses, these companies respond to what their customers want. If “censorship” of conservative speech were really an issue, then the proper answer would be for conservatives to stop using these platforms. I see that Rep. Rye still has a Facebook page, so apparently the persecution of conservatives by this social media company has not been severe enough for him to cut his ties with it.

While this is a profoundly troubling bill, I am not too worried about it causing any harm. For one, this legislation’s private cause of action applies to social media companies that have more than 75 million users and are based in Arkansas. There are no companies that fit this description. Secondly, if it were enacted, it is doubtful that it would survive the inevitable court challenges that would quickly follow (and cost the state plenty of money to defend). One likely challenge would rest on this proposal’s possible conflict with the federal Communications Decency Act. That federal law has a provision that pre-empts some state regulation of online content.

Because of these things, this bill is merely posturing by Rep. Rye as a way to say he’s “doing something” to fight conservative “censorship” on social media. However, if that is not the case, and if Rep. Rye really believes that the government should force these companies to carry any political or religious speech, and then unleash numerous, essentially pointless lawsuits against them if they don’t, then that is deeply troubling.

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