Taken aback by the willingness of Twitter, Facebook, and YouTube to censor President Donald Trump and other conservatives in the wake of the U.S. Capitol riot (and for quite a while before, to be honest), lawmakers in North Dakota are proposing legislation that would allow social media users to sue Big Tech companies for illegitimate bans and censorship.
“I drafted it in December and things have only gotten worse,” said State Rep. Tom Kading (R-ND) in an interview with Fox News this weekend. “I’m frankly shocked at what’s happening to our country and censoring does not create unity, it does not help the situation of division in our country, and it does not de-escalate the situation. All it really does is make those who have been silenced dig in deeper and be more suspicious of what’s going on.”
Yes. YES! This is exactly what the constitutional framers understood more than 200 years ago. It’s what Americans of all stripes have understood for generations. There’s a reason why freedom of speech is enshrined in the very first amendment, after all. And while it’s true that there’s a difference between Twitter’s haphazard policies and the right of Congress to pass laws abridging speech, the quasi-monopolistic power of these companies blurs that line a little further with each passing day.
In Kading’s bill, social media websites would face liability in any civil lawsuit from North Dakota residents who have had their speech “restricted, censored, or suppressed.” The only exemptions would be for speech that is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”
Kading said of his bill: “If a website comes out and selectively publishes information or manipulates true information in order to create a certain desired narrative, this restrictive action can essentially amount to defamation.”
Free speech experts say that it is Kading’s legislation that violates the First Amendment, and they note that every social media user has to agree to a platform’s terms of service when signing up for an account. Nonetheless, Kading says this is exactly part of the problem; these sites are not enforcing their rules in a fair manner across the ideological divide.
“If Big Tech doesn’t follow their terms of service and they are banning one particular political party and they censor outside the scope of Section 230, then there’s this civil liability,” he said.
We’ll grant that legislation like this can quickly spiral out of control, and it could even make it impossible for these companies (or any like them) to exist. On the other hand, the pressure of impending bills of this sort could – perhaps – convince these companies that it’s time to shape up.