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Research & Commentary: Tennessee House Champions Common Carriage for Social Media Companies

April 13, 2022

In this Research & Commentary, Samantha Fillmore examines a House Bill in Tennessee that seeks to classify Big Tech as common carriers.

Both chambers of the Tennessee General Assembly have recently zeroed in restraining Big Tech censorship. The Tennessee House of Representatives has introduced House Bill 2369, in tandem with companion legislation Senate Bill 2161, to legally establish social media platforms as common carriers. This bicameral initiative also authorizes certain state authorities with the power to ultimately prohibit a social media company from discriminating against Tennessee citizens on the basis of political ideology, viewpoint, religion, or personal animus. 

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 significantly enhance freedom of 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.

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 the 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.

First, House Bill 2369 requires social media platforms to obtain a certificate of public convenience and necessity from the Tennessee Public Utility Commission, in order to establish common carriage status.

The bill also calls for the creation of a new oversight committee within the Tennessee Public Utility Commission. This commission—consisting of an attorney and two analysts—would establish the rules and regulations for social media platforms. Further, the commission will process written complaints by Tennesseans if they suspect that a violation of this legislation is imminent, occurring, or has occurred. The commission may then investigate the suspected violation; based upon the investigation’s results, it may conduct a contest case hearing.

If the commission finds a violation after a contested case hearing, it may fine the operator of a social media platform or suspend or revoke the certificate of public convenience and necessity of the social media platform. Additionally, if the commission finds a social media platform has violated the stipulations of this bill at the conclusion of the hearing, a user may choose to bring a private cause of action against the social media platform. Under this instance, a user may be awarded actual damages, punitive damages if appropriate, other forms of equitable relief, and/or reasonable legal fees.

This policy solution within HB 2369 is similar to what several states have proposed, all of which allow citizens a private cause of action in court if they feel they have been de-platformed without due process. algorithms Big Tech has increasingly used to de-platform and shadow ban individuals.

For too long, Big Tech companies have been insulated from liability because they claim to merely be platforms. However, these platforms operate in an editorial capacity. HB 2369 would lift their liability shield, making them susceptible to suits from citizens who have been unduly and unfairly de-platformed.

Furthermore, Section 230 of the U.S. Code—which defines the role and structure of the FCC— specifically allows state legislatures to enforce respective state laws so long as they are consistent with Section 230. 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 2369. This legislation states outright that it is intended to comply with the exemption provided within Section 230.

HB 2369 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 Tennessee the message that robust public debate is sacrosanct and any action or lack thereof to maintain such debate will be met with hard questions—and if necessary, legal repercussions.

As House Bill 2369 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