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Research & Commentary: Ohio House Bill Challenging Big Tech Is Now in the Senate

June 23, 2022

In this Research & Commentary, Samantha Fillmore examines a House Bill in Ohio that would provide citizens an avenue to bring action against social media platforms for censoring or deplatforming them.

The Ohio House of Representatives has held many hearings in the House Civil Justice Committee on House Bill 441, legislation that would challenge big tech and protect the free speech rights of citizens in the Buckeye State. After passing through committee, HB 441 is now in the hands of the Ohio Senate. This legislation provides Ohioans an avenue to bring action against social media platforms and seek damages if their online free speech has been blocked, restricted, suspended, terminated, removed, or banned.

In the blink of an eye, the emergence of social media has elevated the national conversation and political discourse to a breadth nearly unimaginable a decade ago. When originally developed, these emerging technologies and mediums promised to bring democratization of free speech.

However, this mass communication network is managed by a handful of powerful tech titans who are protected from liability and operate as monopolies. The consolidation of power amongst these tech oligarchs has now effectively erased the empowerment of millions of Americans and their newfound voices. Though it has empowered voices and people across the political spectrum, it has also empowered the voices who seek to divide, misinform, and manipulate the public.

According to Statista, the number of social network users worldwide reached 3.6 billion in 2020 and is projected to increase to 4.4 billion by 2025. According to Datareportal, the average time a person spends on social media per day is two hours and 24 minutes. At that rate, if someone were to sign up for social media accounts at the age of 16, they would spend 5.7 years on social media platforms by the time they reach their 70th birthday.

Furthermore, 70 percent of the U.S. population (231.5 million Americans) is active on social media. In other words, social media platforms such as Facebook and Twitter have become the primary channels of communication in the twenty-first century. Just like television replaced radio as the main medium of information in the mid-twentieth century, social media reigns supreme today.

This phenomenon was further exacerbated by the coronavirus pandemic. A Harris Poll conducted in early 2020 found 46 to 51 percent of U.S. adults were using social media at higher rates than they were pre-pandemic. In addition, U.S. social network ad spending is projected to rise 21 percent from the already staggering $40 billion spent in 2020 to $49 billion in 2021, according to eMarketer.

This data provides ample evidence that social networks have become much more than hosts for expression, memes, and life updates among friends and family. In 2022, social media has become a major sector of the United States economy, influencing corporate successes and failures.

Along with influencing streams of revenue through advertising, we have seen more clearly than ever that social media platforms can impact and guide social discourse. Combining this phenomenon with the highly divisive political and social climate that has plagued the nation in recent years, America has entered the era of social media censorship.

According to the Pew Research Center, roughly three-quarters of U.S. adults believe it is likely social media sites intentionally censor opinions and viewpoints that do not fall in line with Big Tech’s preferred ideology and political positions.

Following the unparalleled censorship of the former president of the United States (and others) in January 2021 by Facebook and Twitter, many Americans worry they could be next. Big Tech’s arbitrary clampdown on those they deem guilty of spreading “misinformation” or “disinformation” has also raised the eyebrows of federal and state lawmakers.

The policy solution in House Bill 441 is similar to what several states have proposed, which would allow citizens a private cause of action in court if they have been de-platformed without due process.

HB 441 would hold that if Big Tech censors an individual for political or religious speech, that individual would have the ability to file suit against them if he or she did not violate any terms of the user agreement.

HB 441 would address censorship or silencing based on a user’s religious or political free speech, as well as any political speech censored by algorithms used by Big Tech with keywords used as flags to de-platform individuals.

The bill also states that any major interactive computer service may not be found liable under the provisions of this bill if the individual did not adhere to commonsense Good Samaritan guidelines, or if the content violates a federal, state, or local law. Exemptions for damages included in the legislation ensure HB 441 comports with federal law, specifically Section 230 of the 1996 Communications Decency Act.

For too long, Big Tech has been insulated from liability because they claim to be mere platforms, However, these platforms operate in an editorial capacity. House Bill 441 would lift their liability shield, making them susceptible to suits from citizens who have been unduly and unfairly de-platformed.

Furthermore, there is a subsection in Section 230, specifically section (e), subsection (3), which allows state legislatures to enforce respective state laws so long as they are consistent with Section 230. Indeed, this is the case with House Bill 441. Opponents of this legislation would claim that state-based legislation is unconstitutional, which is simply untrue. State-based exemptions exist for legislation such as HB 441.

House Bill 441 should also spur a state-based and national debate on the role of Big Tech in our civic discourse. Allowing a private cause of action in courts is perhaps the tool policymakers need to give the citizens of Ohio the message that robust public debate is sacrosanct. Any action or lack thereof to maintain a robust debate will be met with hard questions, and if necessary, legal repercussions.

As House Bill 441 continues to move through the legislative process, legislators should consider solutions that would protect all Americans from undue censorship by a cabal of Big Tech ideologues who wield near-total power over the dissemination of information in today’s social media-dominated environment. More speech, not less speech, is always better in a free society.

 

The following document provides more information about big tech censorship principles. 

 

Six Principles for State Legislators Seeking to Protect Free Speech on Social Media Platforms

James Taylor, president of The Heartland Institute, writes six principles to protect free speech in light of social media censorship. Political free speech in the United States is under attack. Tech media giants who own and control virtually all social media platforms available to Americans are working together to silence groups with whom they do not agree. 

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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 PolicyBot, Heartland’s free online research database.

The Heartland Institute can send an expert to your state to testify or brief your caucus; host an event in your state; or send you further information on a topic. Please don’t hesitate to contact us if we can be of assistance! If you have any questions or comments, contact Heartland’s Government Relations department, at governmentrelations@heartland.org or 312/377-4000.

Author
Samantha Fillmore is a State Government Relations Manager for The Heartland Institute.
sfillmore@heartland.org @GRHeartland