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The Badger State Senate Is Standing Up For Free Speech

October 29, 2021

In this Research & Commentary, Samantha Fillmore examines a Senate Bill in Wisconsin that would challenge 'Big Tech' censorship

The Wisconsin Senate Committee on Government Operations, Legal Review and Consumer Protection held a public hearing on October 26  to consider Senate Bill 525, also known as “an act relating to censorship on social media platforms and providing penalty.” 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. This legislation goes a step further to penalize the prioritization or banning of content from a candidate for state or local office or, “an elected official who holds a state, local, or national office.” This is important because the banning of a candidate on social media can, and will, inevitably impact campaign efforts.

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. The emerging technologies and mediums promised democratization of free speech in a way never dreamed of.

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 16-years-old, 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 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 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.

All of these data points provide ample evidence that social 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.

Additionally, 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 Senate Bill 525 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, SB 525 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.

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 SB 525 comports with federal law, specifically Section 230 of the 1996 Communications Decency Act.

Moreover, under Senate Bill 525, a social media website user may be awarded up to $100,000 if he or she has been found to be 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, not editorial in nature. However, these platforms do operate in an editorial capacity. SB 525 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. As is the case with Senate Bill 525. Opponents of this legislation would claim that state-based legislation is unconstitutional, which is simply untrue. State-based exemptions exist for legislation such as SB 525. 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).”

Senate Bill 525 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 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 SB 525 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.

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