A bill that would protect free speech on social media platforms is currently in the New Jersey State Senate. NJ Senate Bill 1336 establishes requirements for social media websites concerning content moderation practices and establishes a private cause of action against social media websites for violations of said content moderation practices.
SB 1336 attempts to address issues related to social media censorship as well as the issue of censorship by algorithms used by big tech, by allowing citizens to pursue a private right of action in court if they can prove they have been de-platformed for expressing nonviolent opinions.
The bill would classify censorship as an unlawful practice and violation of the New Jersey Consumer Fraud Act if the social media website fails to comply with set forth requirements. Those requirements include publishing their standards, including detailed definitions it uses for determining how to censor or suspend content or users, applying censorship in a consistent manner among its users on the platform, notifying users about any changes to user rules, refraining from censoring a user’s content without providing notification to the user, among other stipulations including protecting candidates for office from censorship, and post prioritization and throttling.
Under SB 1336, a successful private right of action brought by a social media website user could result in as much as $100,000 in statutory damages. This figure is paramount when it comes to subject matter jurisdiction. Residents of New Jersey, along with most other Americans, do not live in a state in which any of the nation’s largest tech giants are headquartered. By allowing people to seek statutory damages totaling $100,000, New Jersey residents would be eligible to file suit in federal court, where $75,000 is the minimum threshold for a diversity of citizenship case.
Although SB 1336 would expand users’ rights substantially, social media companies would still be permitted to impose community standards. The bill states that a social media website may not be found liable or need to notify a user if the censored content or material is “obscene.” As defined as failing to adhere to “contemporary community ethical standards.”
If passed into law, SB 1336 would become effective immediately.
This New Jersey bill is necessary for the protection of constituents’ First Amendment rights as it is undeniable that social media platforms have become the modern day “town square.” They provide one of the largest means of communication between people, businesses, all levels of government, and elected officials.
However, this mass communication network is managed by just a handful of large tech firms that are protected from liability and functionally operate as monopolies. Though these platforms have empowered people across the political spectrum, they have also given great power to those who seek to divide, misinform, and manipulate the public.
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.
This supposition has been proven to be true through the release of the Twitter Files and Mark Zuckerberg’s recent letter to Rep. Jim Jordan (R-OH), chairman of the House of Representatives Judiciary Committee.
According to Zuckerberg’s letter, senior officials from the Biden administration repeatedly pressured him and his employees at Meta to censor certain COVID-19 content. The tech CEO also admitted to censoring the Hunter Biden laptop story ahead of the 2020 election due to government pressure.
The Murthy v. Missouri litigation and the Judiciary Committee’s online censorship investigation have produced documents that corroborate all of Zuckerberg’s claims from their initial resistance to censorship demands from Biden administration officials, to the eventual caving and politically driven censorship.
Zuckerberg’s admission falls in line with what we saw with the release of the Twitter Files, which also showcased the government’s involvement in mandating COVID-19 “misinformation” on Twitter be removed and revealed that the FBI worked in tandem with Twitter to promulgate certain narratives, including the suppression of Hunter Biden’s laptop story in the days leading up to the 2020 election.
Aside from the clear use of these social media platforms as political tools, meant to sway elections, these stories emphasize the hypocrisy of social media platforms and their claim that they are simply bulletin boards or conduits for user speech and that they maintain no editorial component.
This claim insulates these social media platforms from liability under Section 230 of the 1996 Communications Decency Act. Although, it is evident that because they clearly engage in censorship, these platforms do indeed operate in an editorial capacity.
In the midst of all of this censorship, state legislators around the country attempted to take a swing at big tech in the name of free speech for their constituents. Since 2020, 70 bills have been introduced throughout the country with this purpose in mind, including New Jersey’s Senate Bill 1336.
Texas and Florida legislators successfully passed online free speech bills into law that created state-based repercussions when social media platforms engage in censorship based on viewpoint discrimination. However, Big Tech’s lobbyists sued to stop the new laws, leading to a multi-year legal battle that transcended all levels of courts before ultimately appearing before the United States Supreme Court.
Oral arguments for both laws were held in February, before the Supreme Court ruled to return both cases back to the lower courts noting that the social media companies failed to provide sufficient evidence for the facial challenge that they brought before the Court. Ultimately, the Court signaled that no part of either legislation was unconstitutional – as the tech lobbyists had been asserting for years.
These SCOTUS rulings ultimately leave room for the Texas and Florida laws, and NJ SB 1336, to eventually set an important precedent for online free speech, and the First Amendment protections that Americans deserve.
Senate Bill 1336 should also continue to spur a state-based and national debate on the role of Big Tech in our civic discourse. After all, Big Tech ideologues wield near-total power over the dissemination of information in today’s social media-centric environment, and 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.
Pew Research Center: Most Americans Think Social Media Sites Censor Political Viewpoints
The Pew Research Center studied the role of technology and technology companies in Americans’ lives. This study was conducted to understand Americans’ views about the role of major technology companies in the political landscape. Majorities in both major parties believe censorship is likely occurring.
The Cato Institute surveyed 2,000 Americans regarding social media’s use of censorship and contact moderation. The survey finds that 75% of Americans do not trust social media companies to make a fair content moderation decisions and would prefer that social media companies provide users with a greater choice and control over the content they are delivered in their feeds.
The Yale Journal on Regulation takes up the Supreme Court case between Texas House Bill 20 and NetChoice – the lobbying group for online social media platforms. Brendan Carr and Nathan Simington of The Yale Journal on Regulation contend that NetChoice’s argument of unconstitutionality against the Texas Bill conflict severely with Supreme Court First Amendment precedence.
The Twitter files are a series of leaked internal documents from Twitter, Inc. These files were published from December 2022 through March 2023 on the platform by journalist Matt Taibbi. The Twitter files revealed several things most notably, the collusion between the federal government and social media companies, specifically on the issue of censorship. It was found that through selected censorship the federal government aimed to control the narrative on the social media platform.
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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.
