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Research & Commentary: Wyoming Introduces Legislation Challenging Big Tech Censorship

March 30, 2021

In this Research & Commentary, Samantha Fillmore examines a Senate File in Wyoming that would challenge big tech censorship.

The Wyoming Senate will soon consider Senate File 100, which seeks to tackle the growing problem of anti-free speech practices by the titans of big tech. This legislation would help ensure that residents of the Cowboy State have their First Amendment right to freedom of speech protected from big tech censorship. This legislation recognizes that “interactive computer services and companies,” also known as big tech, are similar to common carriers and that they have become omnipresent and paramount to modern public debate.

The rapid emergence of social media platforms has elevated the national conversation and political discourse to a breadth nearly unimaginable a decade ago. The associated emerging technologies and mediums promised democratization of free speech in a way never dreamed of. Free speech and political activism, once the realm of partisans and professional pundits, was accessible such that people who were once spectators were now engaged.

However, this mass communication network is managed by a handful of powerful tech titans, who are protected from liability (under Section 230 of the Communications Decency Act) and in essence operate as monopolies. The consolidation of this power to these titans has 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 that seek to divide, misinform, and manipulate us.

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 2 hours and 24 minutes. At that rate, if someone were to sign up for social media accounts at 16-years-old, they would spend 5.7 years on social media platforms by their 70th birthday.

Furthermore, 70 percent of the U.S. population (231.5 million Americans) has social network accounts. In other words, social media platforms such as Facebook and Twitter have become the primary sources 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 the spring of 2020 found 46 to 51 percent of U.S. adults were using social media at higher rates than they were before the pandemic. In addition, U.S. social network ad spending is projected to rise 21.3 percent from the already staggering $40 billion spent in 2020 to around $49 billion in 2021, according to eMarketer.

All of these data provide ample evidence that social networks have become so much more than a host for expression, memes, and life updates among friends and family. In the current world, the social network 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 even guide the social discourse. Combining this phenomenon with the highly divisive political and social climate that has plagued the nation in recent years, America has entered into the era of social media censorship.

Following the unparalleled censorship of the 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. In this latest instance, this concern has been succinctly addressed by Senate File 100.

The policy solution in Wyoming’s Senate File 100 is similar to other states that have proposed and are considering legislation that would allow citizens to have some ability to fight back if they are de-platformed without due process. Up to 30 state legislatures have crafted, and are deliberating, similar legislation, such as Missouri House Bill 482 and New Hampshire House Bill 133.

Interestingly, Wyoming’s legislation cites Hudgens v. NLRB, a United State Supreme Court case that ruled there are protections available to citizens when a private corporation seeks to curtail their free expression. That is exactly what big tech does in common practice.

The legislation defines “censor” as means to block, ban, remove, de-platform, demonetize, de-boost, restrict, or deny equal access or visibility to or otherwise discriminate against a person. Under SF 100, any user who is found to be censored may bring about civil action in any court in the state against any interactive computer service. The user may seek declaratory or injunctive relief. After due process, if it is found that the user was in fact censored, the court shall award compensation. Also, included in compensatory damages would be costs and reasonable attorney fees to the prevailing user.

SF 100 should also spur a state-based and national debate on the role of big tech in our civic conversations. Ensuring the protection of free expression on social media platforms and allowing action from the state’s attorney general is perhaps the tool policymakers need to give to residents of the Cowboy State so the message is clear that robust public debate is sacrosanct and any action or failure to act to ensure a robust debate will be met with hard questions, and if necessary, enabling policies.

Legislators in Wyoming 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, not less speech, is always better in a free society.

 

The following documents provide 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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Article Tags
Constitutional Reform
Author
Samantha Fillmore is a State Government Relations Manager for The Heartland Institute.
sfillmore@heartland.org @GRHeartland