2022 may be remembered as a turning point for social media regulation, or maybe more aptly, failed social media regulation. Though Texas and Florida managed to dominate headlines recently for their constitutionally questionable deplatforming laws, they’re far from the only states trying to get creative with managing content on social media platforms.
A recent Politico analysis found 34 states, many conservative-leaning but not all, have proposed bills or passed laws vying to influence the way social media companies handle their users’ content. In conservative-led states, the dominating trend here follows the Texas and Florida mould. States ranging from Ohio to Mississippi are trying to write laws that would prohibit companies from removing or moderating users’ content based on their political viewpoint. A handful of these states are trying to make those laws a reality by attempting to designate large social media firms as “common carriers,” a designation that would have them look and feel more like telecoms.
On the other hand, legislators in Democratically led states like New York and California are attempting to forward legislation that would encourage social media companies to take a heavier-handed approach to moderating certain types of content deemed harmful. Though the implications aren’t equivalent in effect, both strategies have drawn the attention of tech industry groups like NetChoice and first amendment scholars who say the bills could diverge fundamentally from precedents around how tech companies operate. Some of these proposals, experts say, are almost certainly violations of the first amendment.
Here are a few of the states with proposals attempting to shake up social media.
Here’s where it all started. Back in May last year, Florida governor, and apparent Elon Musk sycophant Ron DeSantis signed into law a bill that would ban social media companies from knowingly deplatforming political candidates. The bill, which was first proposed a month earlier was widely seen as a direct response to tech platforms’ near-universal decision to boot Donald Trump’s account over claims he used his platform to incite a mod to storm the U.S. Capitol on January 6th. The law would fine social media companies $US250,000 ($347,050) a day for banning political candidates.
Since then, Florida’s bill has waded through legal hell. Last June a federal court issued a preliminary injunction blocking the bill on First Amendment grounds. “Like prior First Amendment restrictions, this is an instance of burning the house to roast a pig,” U.S. District Judge Robert Hinkle wrote at the time. Florida appealed that courts rule only to have the 11th Circuit Court of Appeals uphold the block earlier this year. The court did allow for some of the law’s lesser provisions, like one allowing banned users to access their data for up to 60 days, to proceed.
Florida may have gotten the ball rolling on the social media censorship law trend, but it’s Texas’ law that may have the longest-lasting political impact. Texas Governor Greg Abbott signed H.B. 20 or the “Freedom from Censorship Act” into law last summer. In a nutshell, the law lets users sue large platforms for blocking their accounts, even if the content they were blocked for violates the company’s terms of service. Leading tech industry groups sued Texas over the law arguing it violates those companies’ First Amendment rights.
Since then the law has bobbed around in a game of judicial pinball. First, a federal district court blocked the law on First Amendment grounds in December. In May, the conservative-leaning 5th circuit court appeals lifted the previous court’s injunction, setting the stage for the law to take effect. Then last month, in dramatic fashion, The Supreme Court stepped in to put the law on hold in a usual 5-4 ruling hours before it was set to take effect. It’s not entirely clear how courts will react moving forward. Though the law’s future remains unclear, it’s already stretched its wings and helped influence a number of similar anti-censorship laws in mostly conservative states.
Though not necessarily a “censorship” law per se, New York is leading the charge among a handful of states trying to pass legislation that would, in effect, force social media companies to take a more heavy-handed approach to content moderation. The state’s recently passed law will require all social media companies operating in the state to maintain a reporting mechanism for individuals to report instances of hateful conduct. Under the law, social media companies must directly respond to anyone who reports hate speech incidents. Companies found in violation of the law can expect civil penalties and fines of up to $US1,000 ($1,388) per day.
Tech industry lobbying groups like NetChoice have expressed concerns the New York Law could violate the First Amendment because its definition of hateful content is overly broad.
“The temptation for the government to step in is incredibly high no matter where you live,” NetChoice counsel Chris Marchese said. Though passed, New York’s law isn’t expected to take effect until December.
Earlier this year a group of eight Republicans on the state’s Civil Justice Committee approved a bill that would attempt to prohibit social media platforms from removing speech based on users’ viewpoints. Unlike other bills, Ohio’s HB 441 does not let the state actually enforce the bill. Instead, it would grant everyday Ohioans the power to file civil suits against social media companies with more than 50 million active monthly users in the U.S.. By ceding punitive power to individuals, Ohio’s social media laws resemble Texas’ restrictive abortion law which lets individuals sue doctors believed to have performed an abortion.
The bill’s text makes some of the broadest, loftiest claims of most states. In the bill, lawmakers refer to certain social media companies as, “common carriers,” and use the term “censor” broadly to refer to essentially any action taken by a platform to engage in content moderation, even if it clearly does not violate the company’s own stated policies.
Like Georgia and Tennessee, a recently proposed social media bill in Michigan would attempt to assign certain social media companies with common carrier status and legally prevent those companies from removing certain users from their platforms. Not so subtly, the bill’s called the “Social Media Censorship Prevention Act.”
Michigan’s text uses broader language then many other states, saying unspecifically that social media companies, “shall not unjustly or unlawfully discriminate against expression.” The bill seeks to prevent companies from “censoring” users based on their viewpoints as well as their geographic location. That last stipulation appears unique amongst other proposed state social media laws. The bill, if passed as written would only apply to users who live or do business in the state or who “receive expression,” in Michigan.
Tennessee lawmakers recently advanced legislation in the Tennessee House that would force social media companies to register with the Tennessee Public Utility Commission and hit them with fines for banning or shadow banning users. Specifically, the bill would prohibit social media companies from de-platforming users if that decision is rooted in political ideology, viewpoint discrimination, or personal animus.
In an interview with The Centre Square, Republican State Senator and bill sponsor Dennis Powers said he believed, “This is going to be model legislation.”
Georiga’s state senate recently passed its own so-called anti-censorship bill earlier this year called SB 393. Like several other Republican states mentioned in this slideshow, Georgia lawmakers are attempting to classify social media companies (in this case those with more than 20 million monthly active users as “common carriers.”) By labelling these social media firms common carriers, Georgia’s law would prevent companies from censoring users based on their “viewpoints.” In effect, that would prevent companies from deleting, demonetising restricting, or “shadow banning,” content.
Mississippi is one of at least six states considering legislation that forces companies to provide transparency reports surrounding their content moderation decisions. As Politico notes, Texas and Florida’s anti-deplatforming laws incorporate these types of reports into their own texts. Mississippi’s version specifically is called the Social Media Accountability, Responsibility and Transparency Act of 2022. In addition to numerous carve-outs requiring social media companies to post their content policies, the bill also explicitly requires social media companies to include, “an annual transparency report on its website outlining actions taken to enforce the [content] policy.
California’s recently proposed bill would require social media platforms located within the state — which let’s be honest, is most of them — to develop a “policy or mechanism” to address content that constitutes “unprotected speech” under the First Amendment. An abstract of the Californian bill, formally called AB 1114, lists obscenity, incitement, and statements that “purport to state factual information that is demonstrably false,” as examples of unprotected speech.
That last carve-out ostensibly appears to zero in on combating misinformation and disinformation, though previous federal attempts to enact similar restrictions have faced challenges.
Unlike New York or Texas’ laws which are both explicitly attempting to use legislation to target certain types of speech, Minnesota is one of several states, including California, attempting to instead regulate social media companies’ algorithms. The end goal: prevent algorithms from specifically targeting minors. Under the state’s, HF 3724, bill, social media companies with more than 1 million account holders operating in the state are prohibited from using their algorithm to target users under the age of 18. Violating companies can face fines of $US1,000 ($1,388) per violation.
NetChoice, a common figure in the state social media law debates, spoke out against the bill saying, despite its stated attempt to target algorithms, that would in effect end up targeting speech. Other groups, like the Chamber of Progress, warned regulating algorithms would lead to the prioritising of less healthy content and could actually make the platforms worse for children.