On Wednesday, the Alabama Senate Committee on the Judiciary held a hearing on Senate Bill 10, also known as the Alabama Freedom of Online Speech Act. This legislation provides citizens of the Yellowhammer State an avenue to seek financial damages if their online free speech has been blocked, restricted, suspended, terminated, removed, or banned.
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. When originally developed, these emerging technologies and mediums promised to bring democratization of free speech
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 power amongst these tech oligarchs has now effectively erased the empowerment of millions of Americans and their newfound voices. Though 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 the age of 16, 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 channels 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.
This data provides ample evidence that social networks have become much more than hosts for expression, memes, and life updates among friends and family. In 2022, social media has become a major sector of the United States 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 can impact and guide social discourse. Combining this phenomenon with the highly divisive political and social climate that has plagued the nation in recent years, America has entered the era of social media censorship.
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 2021 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.
The policy solution in Alabama Senate Bill 10 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.
Like its predecessors, SB 10 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.
Alabama’s Freedom of Online Speech Act would address censorship or silencing based on a user’s religious or political free speech, as well as any political speech censored by algorithms used by Big Tech with keywords used as flags to de-platform individuals.
The bill also states that any major interactive computer service may not be found liable under the provisions of this bill if the individual did not adhere to commonsense Good Samaritan guidelines, or if the content violates a federal, state, or local law. exemptions for damages included in the legislation ensure SB 10 comports with federal law, specifically Section 230 of the 1996 Communications Decency Act.
Under Senate Bill 10, any user of a major interactive computer service that has had their speech censored may be awarded up to $100,000. This figure is paramount when it comes to subject matter jurisdiction. Residents of Alabama, 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, Big Tech has been insulated from liability because they claim to be mere platforms, However, these platforms operate in an editorial capacity. Senate Bill 10 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. Indeed, this is the case with Senate Bill 10. 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 10. 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 10 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 the citizens of Alabama the message that robust public debate is sacrosanct and any action or lack thereof to maintain a robust debate will be met with hard questions, and if necessary, legal repercussions.
As Senate Bill 10 continues to move through the legislative process, legislators 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.
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Samantha Fillmore is a State Government Relations Manager for The Heartland Institute.
