BY: JAKE ZUCKERMAN
An Ohio House committee on Tuesday passed a law banning social media companies like Facebook, Twitter and YouTube from “censoring” their users.
The legislation would prevent companies from removing posts or kicking people out of their platforms based on users’ “point of view” or ideas expressed in their posts. This would not apply to speech already illegal under federal law such as harassment or incitement to violence.
The move comes as some of the major social media networks grapple with trends such as the widespread undermining among Republicans of the results of the 2020 US presidential election, the proliferation of health advice layered around the COVID pandemic -19 and widespread denial of the Holocaust.
The legislators of 16 other Republican states have introduced similar legislation, stemming from the Conservatives’ perception that social media companies disproportionately censor their opinions. In the past six months, federal judges in Florida and Texas have temporarily suspended the only two such laws enacted to date, ruling they violate the First Amendment to the US Constitution.
Ohio law, House Bill 441, would allow private citizens to sue social media companies and get judgments if their opinions are “censored”. This includes blocking, banning, demonetizing, deplatforming, removing, denying “equal access or visibility” or “discriminating” against the user based on what ‘he publishes. The bill prohibits companies from creating any type of waiver that users must sign to circumvent censorship law. It only applies to companies with at least 50 million users.
Social media companies, the Chamber of Commerce, the ACLU and American Libertarians for Prosperity opposed the proposal. Conservative think tanks like the Heartland Institute and the Heritage Foundation testified in favor.
Proponents of the legislation have alleged that “big tech” companies threaten the free exchange of ideas by stifling content from their users.
Rep. Scott Wiggam, R-Wooster, noted during a session last month that YouTube already has deleted footage of an Ohio attorney named Tom Renz – who groundlessly accused President Hunter Biden’s son of play a role in creating the coronavirus pandemic – Testify at an Ohio Legislative Committee hearing. A YouTube spokeswoman said at the time that the company did it for Renz violating its COVID-19 misinformation policy by falsely claiming that children could not get the disease.
While social media companies are removing some conservative content, they have barely silenced their voices, especially on Facebook. Data from CrowdTangle — which measures social media engagement, including likes, comments and more — regularly finds Republican pundits dominating Facebook. For example, on May 4, the top performing link posts on US Facebook Pages included conservative podcaster Ben Shapiro, conservative evangelical preacher and commentator Reverend Franklin Graham, Fox News host Sean Hannity and fellow Fox host Dan Bongino.
Nearly 3 in 4 Americans use at least one social media site, according to the Pew Research Center. Among adults, about 37% say it is “very likely” and 36% say it is “somewhat likely” that social media sites intentionally censor views they find objectionable. The same poll found that 69% of Republicans think tech companies support liberal views over conservatives, compared to 25% of Democrats. Other Pew Research found that Americans are generally mixed about whether social media companies should use algorithms to find and remove false information from their platforms.
At least two federal judges have blocked similar laws from being passed in other states, ruling them both to be contrary to the First Amendment.
To pass a speech abbreviation law, a law must survive a high legal standard known as rigorous scrutiny. To do this, a state must satisfy the courts that the law serves a compelling governmental interest and that the law is closely tailored to that interest.
In Florida, U.S. District Judge Robert L. Hinkle, appointed by President Bill Clinton, found that a similar law signed by Governor Ron DeSantis was “nowhere near” meeting the standard. The legislation was drafted, he said, to rein in social media providers deemed too big and too liberal. It’s none of the government’s business, he found.
“Balancing the exchange of ideas between private speakers is not a legitimate government interest,” he said, posting a preliminary injunction temporarily block the entry into force of the law. This injunction is currently under appeal in the Eleventh Circuit.
In Texas, U.S. District Judge Robert Pitman, appointed by President Barack Obama, came to a similar conclusion. Forcing social media platforms to host content against their rules violates their free speech rights, he ruled. That decision is also on appeal in the Fifth Circuit.
Analysts with the Legislative Service Commission, a nonpartisan research arm of the Legislature, said it was “unclear” how the state law would interact with the federal Communications Decency Act. This federal law establishes immunity against lawsuits regarding content on a Platform that has been posted by a third party.
The Ohio law would also expressly declare that social media companies are “common carriers” – who do not enjoy the same protections of expression as publishers like newspapers. Court decisions have disputed this point. Pitman, Texas, notes that social media companies regularly filter, moderate, highlight and curate content. This makes it an editor, even if it is an algorithm that does the sorting instead of a human editor.
“It is indeed new and exciting – or scary, depending on who you ask – that algorithms are doing some of the work that a newspaper publisher used to do, but the central question is still whether a private company wields power editorial discretion on content delivery, not the exact process used,” he said.
Pros and cons
The Chamber of Commerce opposed the bill, arguing that it interferes with the free enterprise rights of private companies.
Jeff Dillon, a lobbyist for Americans for Prosperity, argued that this unfairly burdens new entrants to social media markets, burdening their potential growth with unsustainable costs to comply with the law. Plus, at least two courts have expressed skepticism about the law’s viability, so why should Ohio throw money, lawyers, and other resources at the idea?
“Taxpayers’ money is limited and valuable, and the cost of litigation would cost Ohio taxpayers hundreds of thousands of dollars of their hard-earned money to defend a law that is so clearly riddled with constitutional concerns; that money could be better spent helping address other real and pressing issues facing Ohio today,” he said.
A trade association of social media companies also opposed the bill, as did the ACLU, arguing that it is simply not up to the government to “dictate companies and private entities what speech they should entertain. , harbor or tolerate”.
Michigan State University law professor Adam Candeub testified in support of the bill in committee. He argued that social media today forms the modern public square. However, the companies that control this place are just “political actors” who “censor and silence those they disagree with”.
Candeub was appointed to a senior telecommunications position with the US Department of Justice under President Donald Trump. He has a long history of bashing social media companies over allegations of anti-conservative bias, according to POLITICOincluding him working as a lawyer for white nationalist Jared Taylor in a lawsuit against Twitter alleging the social network censored him.
This article was republished with permission from the Ohio Capital Journal. For more political news from Ohio, visit www.ohiocapitaljournal.com.