Research & Commentary: South Dakota Trailblazes with Big Tech Censorship Legislation

Published February 22, 2021

The South Dakota House of Representatives is considering House Bill 1223, an “Act to Prohibit Certain Forms of Social Media Censorship.” This legislation provides South Dakotans a private cause of action in court when they have been censored or “de-platformed” on the various social media platforms that have become omnipresent in contemporary America.

The rapid innovation of technology has stunned those of us who remember the pre-digital and dial-up days. In the blink of an eye, the emergence of social media platforms has elevated the national conversation and political discourse to a breadth nearly unimaginable a decade ago. The associated emerging technologies and mediums promised democratization of free speech to a degree unfathomable at that point in time. Free speech and political activism, once the realm of partisans and professional pundits, was made accessible to the point that ordinary people who were once spectators could be thoroughly engaged in the societal discourse.

Sadly, the era of free speech on social media has come to an inglorious end. Much of this is due to the fact that 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 this unprecedented power to these tech titans has now effectively erased the empowerment of millions of Americans and their newfound voices. Even worse, a medium that was supposed to uplift the voices of people across the political spectrum has been turned into an anti-free speech echo chamber wherein the guardians of information have the power to stile free speech, promote their favored social and political narratives, and banish any and all who disagree with them.

According to Statista, the number of social network users worldwide reached 3.6 billion in 2020 and is projected to increase to 4.41 billion by 2025. According to Datareportal, the average time a person spends on social media per day is 2 hours and 24 minutes. At that rate, if someone were to sign up for social media accounts at 16 years old, they would spend 5.7 years on social media platforms by the time they reach their 70th birthday.

Furthermore, more than 231 million Americans are active on social media, about 70 percent of the U.S. population. Social media platforms such as Facebook and Twitter have become the primary sources 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 the spring of 2020 found 46 to 51 percent of U.S. adults were using social media at higher rates than they were before the 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 around $49 billion in 2021, according to eMarketer.

These statistics provide ample evidence that social networks have become so much more than a bulletin board for expression, memes, and life updates among friends and family. In today’s world, the social media giants have become both the public square of the day as well as 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 have the ability to impact and even guide the 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.

Following the unparalleled censorship of the president of the United States (and others) in January 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 potential policy solution in South Dakota’s House Bill 1223 is leading the pack of countless bills that states have proposed that would allow citizens a private cause of action in court if they feel they have been de-platformed without due process. Many other states are following suit with similar legislation such as Missouri’s House Bill 482 and New Hampshire’s House Bill 133. In simple terms, these bills state that if Big Tech censors an individual for political or religious speech, the aforementioned individual would have the ability to file suit against them if said individual did not violate any terms of the user agreement.

South Dakota’s Act to Prohibit Certain Social Media Censorship, sponsored by Representative Phil Jensen (R-District 33), addresses censorship/silencing that is based on a user’s religious or political free speech as well as political or religious expression censored by algorithms used by big tech with keywords used as flags to de-platform individuals. Consequently, the bill lists that a social media website may not be found liable if the individual did not adhere to commonsense Good Samaritan guidelines such as calling for immediate acts of violence, using obscenities, and posts that are pornographic in nature, as well as other provisions.

Most interestingly, in a civil action brought under HB 1223, a social media website user could be awarded $75,000 if they have found to be truly censored for their political or religious speech. This figure is paramount when it comes to subject matter jurisdiction. Residents of South Dakota 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.

House Bill 1223 should also spur a state-based and national debate on the role of Big Tech in our digital civic discourse. Allowing a private cause of action in courts is perhaps the tool policymakers need to give to South Dakotans so that the message is clear that robust public debate is sacrosanct and any action or failure to act to ensure a vigorous debate will be met with hard questions, and if necessary, enabling policies.

South Dakota legislators should consider solutions that would protect all Americans from undue censorship by a cabal of Big Tech ideologues who wield monopolistic 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 documents provide 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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