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Using The Power of State Government To Address Big Tech Censorship

Using The Power of State Government To Address Big Tech Censorship

“States can bar large social media platforms and online service providers from discriminating against their state’s residents based on their lawful political statements or affiliations.”

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As center and right-leaning voices attempt to navigate the Big Tech purge, we are seeing a great many articles discussing what can be done to counter the systematic silencing of anyone who disagrees with Democrats, their media activist arm, and Big Tech.

One interesting idea was offered over at Powerline: use state legislatures to establish state laws that protect the state’s citizens from online censorship of lawful speech based on political affiliation.

States can bar large social media platforms and online service providers from discriminating against their state’s residents based on their lawful political statements or affiliations. Such laws could even allow Big Tech to continue deleting dangerous material, etc. if they wanted–so long as the standards were applied neutrally across the political spectrum. That way, someone could sue for ideological discrimination, and if they presented evidence of a similarly “problematic” account or tweet that was not deleted, they could prevail in court.

This would effectively stop the ideological purge in its tracks, as Big Tech steadfastly allows a lot of horrific tweets to remain online, as long as they are not from American conservatives. If states created a private right of action, statutory standing and penalties, and attorney’s fees awards for successful plaintiffs, Big Tech would likely have to surrender.

Such statutes are not uncommon. California, for example, routinely passes privacy, employment, and other laws with similar enforcement mechanisms against international companies. And on the international scene, by way of further example, Poland is about to enact a law imposing significant fines (up to $2.2 million) for social media platforms [that] censor lawful speech.

Read the whole thing.

In Part Two, Powerline addresses potential legal difficulties in such an effort.

It appears the only issue (not surprisingly) is Section 230 [of the Communications Decency Act]. It creates two specific hurdles:

1. It provides immunity to interactive computer services for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” 47 U.S.C.A. § 230(c)(2) (emphasis added).

To address this, states could simply legislate that intentionally discriminating against otherwise-lawful political speech they disagree with is not “good faith.” I have yet to find a court decision that says “good faith” necessarily includes such discrimination, or that such an interpretation would be inconsistent with federal law. See also id. at §(e)(3) (“Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section.”).

2. It provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Id. at § (c)(1). This obviously seems designed to protect the services from libel lawsuits for other people’s material (in fact, Section 230 was expressly written to do just that by overturning an NY decision called Stratton Oakmont, Inc. v. Prodigy Services Co.). Indeed, a plain language reading of this, in my view, would not protect Twitter from otherwise-unlawful viewpoint discrimination; after all, they’re not being punished for “publishing” or “speaking” other people’s information at all.

The problem is that many courts have interpreted this subsection very broadly to shield almost all decisions concerning content removal and alteration. That interpretation is not uniform or unlimited, however. See, e.g., e-ventures Worldwide, LLC v. Google, Inc., 2017 WL 2210029, at *3 (M.D. Fla. Feb. 8, 2017) (“[I]nterpreting [Section 230] this way results in the general immunity in (c)(1) swallowing the more specific immunity in (c)(2)”); Darnaa, LLC v. Google, Inc., 2016 WL 6540452, at *8 (N.D. Cal. Nov. 2, 2016) (“Plaintiff’s claim for breach of the implied covenant of good faith and fair dealing, however, is not precluded by § 230(c)(1) because it seeks to hold defendants liable for breach of defendants’ good faith contractual obligation to plaintiff, rather than defendants’ publisher status.”). [emphasis in original]

Possible remedies the states could preemptively take are also briefly discussed, so read the whole thing.


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Are these the same state governments that protected our federal election?

    Aussie bloke in reply to r2468. | January 18, 2021 at 2:58 am

    Good point mate.
    State Governments can also apply Billion dollar mandatory fines as well to Big Tech for Censorship etc.

    But lets see if the Republicans have the balls to do it.

    A lot of Republicans were in on the vote fraud as well, so i do not expect them to punish Big tech

If you can’t see the many, many ways this will make the problem infinitely worse, you deserve the brave new world you’re seeking.

    Mox Nix in reply to daniel_ream. | January 17, 2021 at 6:34 pm

    How about a few examples?

    felixrigidus in reply to daniel_ream. | January 17, 2021 at 10:29 pm

    Anarchist warning that making a law against theft, robbery, or fraud leads down a slippery slope. If you cannot see the many, many ways these laws would make things infinitely worse you deserve the dystopian future you invite by making these kinds of laws.
    If you are too lazy to even give one example you seem to have no substance behind your rhetoric. Unsurprisingly.

    Milhouse in reply to daniel_ream. | January 18, 2021 at 10:11 am

    Daniel, could you please expand on this? I’m seeing some minor problems with this approach, but nothing major.

    The main problem I see is that it would infringe the first amendment right of even explicitly political blogs, such as this one, to delete comments that their owners find politically offensive. Not that LI actually does that, but it has the right to, and this suggestion would infringe on that right.

    But I wouldn’t call that “making the problem infinitely worse”, so I don’t think that’s what you mean.

      daniel_ream in reply to Milhouse. | January 18, 2021 at 1:58 pm

      I’m feeling particularly blackpilled today, so excuse my choice of allegory.

      Internet humorist “Seanbaby” has a bit where he reviews the Hostess Fruit Pie ads from Silver Age superhero comics. In one of them, the villain is The Chairman, with a gun that turns people into sentient talking chairs (I am not making that up).

      Seanbaby’s response is “…it makes me wonder why he didn’t just make a gun that can transform someone into a giant dancing candy bar that gives free bl*wj*bs. There is NO WAY that could be more complicated.”

      If you – or anyone else – can draft a functional legal definition of “political statements or affiliations”, you may as well go whole hog and draft a functional legal definition of s.230’s “or otherwise offensive” and solve the problem at its source. There is NO WAY that could be more complicated.

      Just to take an obvious example and invoke Godwin’s Law, Naz!!sm is a “political affiliation“. If you think anti-Semitism on the Internet is bad now, wait until you protect neo-Naz! “political speech” with the force of law. Takimag removed its comments section because it was overrun with nutbars screaming “JOOOOOOOOOS” constantly.

      Also a “political statement or affiliation”: hardcore pornography. For that matter, NAMBLA.

      But we don’t even need to be that outrageous: “support your local political candidate by buying my knockoff Gucci handbags” is unambiguously political speech.

      Most web users simply never see the vast amount of utter sewage submitted to comment sections all over the ecosystem because there are very effective spam and content filters preventing them from ever showing up. Make it illegal to use filters or human moderation, which is what this idiotic law would do, and the consequences are inevitable. Either web sites remove commenting altogether rather than risk crippling fines, or comment sections/fora become cesspools of spam for wang-embiggening pills, neo-Naz!s and MAKE.MONEY.FAST scams and users depart because the signal-to-noise goes to zero.

      Either way free comment on the Internet ends. Enjoy the brave new world.

        Milhouse in reply to daniel_ream. | January 18, 2021 at 10:20 pm

        Not a valid objection. You can require viewpoint neutrality but not content neutrality, just like the rules that apply to state actors in a limited public forum. As you surely know, while in a traditional public forum government rules must be content-neutral, in a limited public forum they need only be viewpoint-neutral. That is, the government can regulate what kind of speech is allowed, so long as the regulations don’t relate to the viewpoint expressed. For instance it can ban vulgarity, so long as it treats everyone’s vulgarity the same.

        So providers could still keep out spam, even if it mentions politics; your example of “support your local political candidate by buying my knockoff Gucci handbags” would not work, because the rule targets the second part, not the first part. Everyone flogging knockoff handbags is banned, regardless of which candidate they support.

        Yes, such a rule would prevent providers from moderating comments that express nazi and NAMBLA viewpoints, or that support terrorism, so long as they do so without using offensive language. That’s something we put up with in government-run forums, so it’s not that big a burden to require privately-run forums to put up with it too. It would infringe the first amendment, and that may turn out to be an insurmountable problem, but it wouldn’t be “making the problem infinitely worse”.

        Consider those states that have laws banning discrimination on the basis of political affiliation. I believe California is one such state. In CA you can’t fire someone for their politics, or so I’m told. How does that work in practice? Maybe someone can tell us.

          mark311 in reply to Milhouse. | January 19, 2021 at 6:34 am

          I tend to agree with you, my only slight issue with what you’ve said is with regard to offensive language that isn’t the issue. Offence is inevitable in debate because let’s face it if you have a diametrically opposite view to someone you are abound to offend. Replace the word offence with something akin to ‘promoting violence and illegal action’ and I’m totally with you

Another path I have advocated for is for States, Counties and Municipal government to require alternatives in their on line presence.

Almost every government entity has a Twitter account and a FB page. They use these to offer public announcements and communication about the issues within their scope; local School Board or School has a FB page that lists out upcoming events.

The Federal government and most States have provisions that require competitive bidding and/or rotation among vendors to discourage cronyism and anti competitive choices.

Perhaps these laws and provisions could be updated to allow for the realities of the digital age. Requiring government entities to at least run side by side platforms would accomplish two important things. First it ends the current monopoly grip on information flow to and from public entities. Secondly it creates organically a critical mass of users for alternative platforms.

An easy way to visualize this is Parlor. If every Federal, State, County and Municipal government entity ran Parlor along side Twitter that is a huge influx of users. It would also highlight the problems with a group of tech tycoons deciding to withdraw from providing services to Parlor.

This seems to me a much more straightforward approach. As an additional benefit it would show exactly whom the competition is in a very clear way. In some cases there isn’t a competitor in the same space. In that case, FB stands out as one example, no more use of FB until a competitor emerges.

Yes that would be inconvenient for some. However it would break the current monopoly system. Don’t believe me, go and look at the links on your State government public facing webpage. You will find links to their FB and Twitter accounts but not competing companies links.

Powerline won’t let me comment and Fuzzy apparently has decided to delete comments critical of her so I’ll just shut up and do what I’m told.

If Paul Mirengoff is for it them I am too.

2smartforlibs | January 17, 2021 at 5:18 pm

If that’s what we are left with why do we need a bloated centralized government? Seems it’s time to overhaul the parasite class.

I’m thinking that this sort of thing needs to be framed in terms of “consumer protection”. We have all kinds of laws which purport to protect consumer rights – how is the right to consume communication any different? It’s what these tech companies are selling, isn’t it?

    That’s an interesting point. I’ve often thought that the selective enforcement of standards (False claims that President Trump encouraged violence get him banned but actual encouragement of violence by people like Alexandrea Ocasio-Cortez are fine) was, itself, a violation of the terms of service.

    Some kind of enforcement seems reasonable. But who has the time or money for a lawsuit? Even a class action lawsuit (which would get stopped dead by cancelation of the law firm and squashing of any news about it)

      Mox Nix in reply to irv. | January 17, 2021 at 8:01 pm

      Institute of Justice. FIRE or similar organization? Or for that matter, the state consumer protection agency?

There is nothing that Government cannot screw up.
Or screw up worse that it already is.

    felixrigidus in reply to snowshooze. | January 18, 2021 at 7:51 am

    You seem to think something follows from this assertion. Would you mind spelling out what you think should follow?

    Do you suggest we do away with the military and police because “(t)here is nothing that Government cannot screw up”? And if you do not suggest that you have overstated your argument, and frankly nothing you seem to imply follows from it, certainly not that we allow others to cancel our rights and our ability to earn a living?

      Milhouse in reply to felixrigidus. | January 18, 2021 at 10:13 am

      Do you suggest we do away with the military and police because “(t)here is nothing that Government cannot screw up”?

      I would if there were a reasonable alternative. Since there isn’t, I accept that the government will screw them up, and we just have to live with it.

        felixrigidus in reply to Milhouse. | January 18, 2021 at 12:43 pm

        The difficulty is to find the correct balance.
        Pointing out that it is dangerous to give power to the state is not really new. I dare say Hobbes wasn’t the first person to realize that a state powerful enough for its purpose is a dangerous beast indeed.
        Because it is such a basic issue just stating this most abstract top-level problem of any societal order doesn’t really help any policy discussion.
        That is why we, Milhouse, agree, and why I try to get some sort of application of this most abstract notion to the problem at hand from snowshooze.

“use state legislatures to establish state laws that protect the state’s citizens from online censorship”

Or skip the legislature and pass a ballot initiative!

The US Government already screwed up the communications scene by enacting 230.

While the intent of 230, may have been noble; to protect an instant communication network spanning millions of people from frivolous lawsuits designed to destroy it; little legislative thought went into it. The lobbyists were allowed to write it and the politicians rubberstamped it.

A more thoughtful approach would have been to grant limited immunity while requiring no editing of the content. Individual poster could be sued for defamation, libel and thee like and the carrier could have been required to cooperate with anyone bringing suit against a posting entity. Criminal charges could be filed against any poster violating various criminal laws, as is the case today. Instead, the Congress granted these hosting platforms the power to engage in editorial factions, of whatever type they desired, with legal impunity. This is analogous to allowing the USPS to read your mail before it is delivered. And then to unilaterally decide, not only what mail to deliver, but to ban specific customers from using the service.

    mark311 in reply to Mac45. | January 19, 2021 at 6:39 am

    Giving the liability to an anonymous commentator doesn’t sound practical. It would in effect give the site the ability to say not my fault no matter what content was produced in the comment section.