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Research & Commentary: Wisconsin State Assembly Moves to Protect First Amendment

November 4, 2021

In this Research & Commentary, Samantha Fillmore examines an Assembly Bill in Wisconsin that will Move to Protect Free Speech on Social Media Platforms.

The Wisconsin Assembly Committee on Constitution and Ethics held a public hearing on October 21 to consider Assembly Bill 530, also known as “an act to create the statutes relating to censorship on social media.” This legislation would provide citizens of the Badger State a private cause of action in court if they have been unduly censored or “de-platformed” on one of the various social media platforms.

In addition, it would penalize the prioritization or banning of content from any candidate or elected official seeking or holding public office. Furthermore, AB 530 would penalize Big Tech for blatant instances of “post prioritization” based on content it deems in accordance with its views. AB 530 defines censorship as, “any action taken by a social media platform to delete, regulate, restrict, edit, alter, inhibit the publication or reproduction of, suspend a right to post, remove, or post an addendum to any content or material posted by a user.” Post prioritization is defined as, “an action by a social media platform to place, feature, or prioritize certain content or material ahead of, below, or in a more or less prominent position than other content in a newsfeed.”

Social media’s recent emergence has catapulted the level of political discourse to significantly greater heights via its establishment of a new medium for the expression 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 this power to these titans has now effectively erased the empowerment of millions of Americans and their newfound voices. Where 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.

In terms of the United States, 70 percent of the population (231.5 million Americans) is active on social media. Clearly, social media platforms such as Facebook and Twitter have become the primary sources of communication in the twenty-first century. And just as 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.

In summation, social media platforms and networks have become much more than hosts for expression, memes, and life updates among friends and family. In 2021, Big Tech has become a major sector of the U.S. 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 have the ability to impact and guide the social discourse. Combining this development with the highly divisive political and social climate that has plagued the nation in recent years, America has entered the era of Big Tech 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 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.

Throughout 2021, we have seen 77 pieces of legislation in 33 states, culminating in approximately 700 legislators sponsoring or co-sponsoring bills intended to challenge the unilateral power of Big Tech.

The policy solution in Wisconsin’s Assembly Bill 530 is similar to what several states have proposed, which would allow citizens a private cause of action in court if they feel they have been de-platformed without due process. Many other states have introduced similar bills, such as Florida’s Senate bill 7072 and Texas’ Senate Bill 1158.

Like its predecessors, AB 530 would hold that if Big Tech censors an individual for political or religious speech, then the aforementioned individual would have the ability to file suit against them if he or she did not violate any terms of the user agreement.

This bill would address censorship/silencing that is based on a user’s religious or political free speech as well as political or religious expression censored by algorithms used by Big Tech with keywords used as flags to de-platform individuals. Assembly Bill 530 defines algorithm as, “a mathematical set of rules that specifies how a group of data behaves that will assist in ranking search results and maintaining order or that is used in sorting or ranking content or material on the basis of relevancy or other factors instead of using chronological order of such material.”

The bill also states that a social media website may not be found liable if the individual did not adhere to commonsense Good Samaritan guidelines, such as calling for immediate acts of violence, encouraging self-harm, posting obscenities, and creating posts pornographic in nature, as well as other provisions. These exemptions included in the legislation ensure AB 530 comports with federal law, specifically Section 230 of the 1996 Communications Decency Act.

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. As is the case with Assembly Bill 530. Opponents of this legislation would claim that state-based legislation is unconstitutional, which is simply untrue. State-based exemptions exist for legislation such as AB 530. This legislation outright states on the first page of the bill that, “This act is intended to comply with the state law exemption under 47 U.S.C. § 230 (e) (3).”

Moreover, under Assembly Bill 530, a social media website user may be awarded up to $100,000 if he or she was censored for political or religious speech. This figure changes when the censored individual is an elected official. In cases involving lawmakers or candidates for political office, the penalty would be raised to $250,000. This dollar amount is paramount when it comes to subject matter jurisdiction. Residents of Wisconsin, as well as residents of most states considering similar legislation, do not live in the state in which these tech giants are headquartered. This would mean any civil action under this type of legislation is a diversity of citizenship case. Federal district courts have subject matter jurisdiction if the plaintiff asks for at least $75,000 in damages.

For too long, these entities have been insulated from liability because they claim to be mere platforms. However, these platforms operate in an editorial capacity. AB 530 would lift Big Tech’s liability shield, making these companies susceptible to suits from citizens who have been unduly and unfairly de-platformed.

Assembly Bill 530 should also spur a larger state-based and national debate on the role of Big Tech in our civic discourse. Allowing a private cause of action in courts could be the tool policymakers need to give Wisconsin residents the message that robust public debate is sacrosanct and any action or failure to act to maintain a vigorous debate will be met with hard questions, and if necessary, legal repercussions.

As AB 530 moves through the legislative process, lawmakers in the Badger State 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.

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