Research & Commentary: New Hampshire’s Stop Social Media Censorship Act
In this Research & Commentary, Samantha Fillmore examines a Senate Bill in New Hampshire that would challenge big tech censorship.
The New Hampshire state legislature is now considering House Bill 133, titled the Stop Social Media Censorship Act. This legislation would provide to Granite Staters who have been unduly censored for expressing nonviolent political or religious speech on social media websites a private cause of action in court.
Social media play an important role in modern free societies, providing people with access to tools capable of amplifying their speech to heights previously thought to be unimaginable. Free speech and political activism were once primarily the realms of politicians and professional pundits, but now, billions of people around the world have the ability to engage in a meaningful way in societal debates.
According to Statista, the number of social network users worldwide reached 3.6 billion in 2020, a number that is projected to increase to 4.4 billion by 2025. According to Datareportal.com, the average time a person spends on social media per day is two hours and 24 minutes. At that rate, an average 16-year-old who signs up for social media will spend 5.7 years of his or her life on social media platforms by his or her 70th birthday.
In the United States, social media platforms are especially prominent. More than 231 million Americans currently use social media services—about 70 percent of the U.S. population—and the popularity of these platforms has grown over the past year, thanks in large part to the coronavirus pandemic. A Harris Poll conducted in spring 2020 found that 46–51 percent of U.S. adults say they are using social media at higher rates than they were prior to the start of the pandemic.
Additionally, U.S. social network ad spending is projected to rise by 21.3 percent in 2021. In 2020, total spending topped $40 billion, according to eMarketer.
As these statistics show, ample evidence exists proving that social networks have become so much more than a host for memes and birthday celebrations among friends and family. In today’s world, the vast global social network has become a major economic sector.
Despite their immense benefits, mass communication networks such as Facebook and Twitter pose great threats to individual freedom. The vast majority of social media platforms and other big tech companies are controlled by a small handful of powerful tech titans, who have been given liability protections by government and allowed to operate for years as near-monopolies. These companies now control some of the most powerful communication platforms in human history, and some of these businesses have chosen to use that influence to divide, misinform, censor, and manipulate the public and many voices in politics and the media. Not even presidents have the authority to stand up to big tech.
Within this context, many Americans reasonably worry they could be banned by social media platforms for expressing their political, religious, or cultural opinions. Rather than provide clear, consistent rules for participating on social media, big tech has chosen to arbitrarily clamp down on those they deem guilty of spreading “misinformation” or “disinformation”—subjective standards imposed by biased social media platforms or their ideological allies.
One policy solution to these threats to free speech is New Hampshire’s Senate Bill 133. SB 133 would provide to the Granite State the authority needed to protect its citizens’ free speech rights on social media platforms.
Under the current system, platforms are typically insulated from liability due to federal laws, leaving states and their citizens with little or no options if they have been censored for political expression, no matter how egregious the censorship is. SB 113 attempts to address issues related to social media censorship, silencing, or “shadow banning” based on a user’s religious or political speech, as well as political or religious expression censored by algorithms used by big tech, by allowing citizens to pursue a private cause of action in court if they can prove they have been de-platformed for expressing nonviolent opinions.
Under SB 113, a successful civil action brought by a social media website user could result in as much as $75,000 in statutory damages. This figure is paramount when it comes to subject matter jurisdiction. Residents of New Hampshire, along with most other Americans, do not live in a state in which any of the nation’s largest tech giants are headquartered. By allowing people to seek statutory damages totaling $75,000, New Hampshire residents would be eligible to file suit in federal court, where $75,000 is the minimum threshold for a diversity of citizenship case.
In addition to statutory damages, a social media website user could under SB 113 also seek actual damages—if aggravated factors occur—as well as punitive damages and other forms of relief that are considered equitable. However, SB 113 states that a social media website that “restores from deletion or removes the censoring of a social media website user’s speech in a reasonable amount of time may use that fact to mitigate any damages.”
Although SB 113 would expand users’ rights substantially, social media companies would still be permitted to impose commonsense community standards. The bill states that a social media website may not be found liable when a user fails to adhere to “good Samaritan” guidelines, such as calling for immediate acts of violence, posting content that contains obscene material or material harmful to minors, or engages in any speech that excites criminal conduct or involves the bullying of minors.
If passed into law, SB 113 would apply to users who are 18 years of age or older and would become effective immediately.
Senate Bill 113 would dramatically expand the free speech rights of New Hampshire’s citizens, and regardless of whether it becomes law, it will likely spur an important national debate on the role of big tech censorship. Numerous other states are already considering legislation that would enact similar protections as those outlined in SB 113, such as Missouri (House Bill 482) and Oklahoma (Senate Bill 383). The Heartland Institute is also working on 59 pieces of similar legislation in other states across the nation.
Allowing a private cause of action for social media users who have been silenced for expressing reasonable political or religious views is perhaps the best tool policymakers can use to encourage more free speech on the internet and to assure citizens that robust public debates are still sacrosanct in the United States.
Legislators in New Hampshire, as well as every other state, should carefully consider these and other solutions that would protect Americans from undue censorship by big tech ideologues. More speech, not less speech, is always better in a truly free society.
The following documents provide more information about big tech censorship and ways to enhance free speech rights on the internet.
In this publication by Heartland President James Taylor, the author outlines six principles for state legislators seeking to protect free speech and limit social media censorship.
Nothing in this Research & Commentary is intended to influence the passage of legislation, and it does not necessarily represent the views of The Heartland Institute. For further information on this and other topics, visit the Budget & Tax News website, The Heartland Institute’s website, and , Heartland’s free online research database.
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