The Michigan House of Representatives has held a hearing on House Bill 5597, also known as the “Justice Abolishing Corporate Kneecapping Act.” This legislation provides political candidates in the Great Lake State an avenue to seek financial damages if their online free speech has been blocked, restricted, suspended, terminated, removed, or banned throughout their time as a political candidate.
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 significantly enhance freedom of speech.
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 radio as the primary 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 Michigan House Bill 5587 is similar to what several states have proposed, which would allow citizens a private cause of action in court if they have been de-platformed without due process.
HB 5587 holds that a social media platform shall provide each user with a method by which they can be identified as a political candidate. A user may identify as a candidate beginning on the date the user qualifies as a candidate and ending on the date of the election or the date a user ceases to be a candidate. If a user elects to be identified as a candidate on the social media platform, the user must provide sufficient information to allow the social media platform to confirm the user’s qualification as a candidate.
If a user is identified as a candidate, the social media platform shall not willfully deplatform that user during the period in which the user is identified as a candidate.
Under HB 5597, a user that is identified as a candidate may bring a civil action against a social media platform for a violation of this act. A court shall award damages of no less than $10,000 per day as well as reasonable attorney fees.
This figure is paramount when it comes to subject matter jurisdiction. Residents of Michigan, 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.
Section 230 of the U.S. Code—which defines the role and structure of the FCC— specifically allows state legislatures to enforce respective state laws so long as they are consistent with Section 230. Indeed, this is the case with HB 5597. Opponents of this legislation would claim that state-based legislation is unconstitutional, which is simply untrue. State-based exemptions exist for legislation such as HB 5597.
HB 5597 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 for political candidates in courts may be the tool policymakers need to give those in Michigan the message that the democratic process is sacrosanct. Any action or lack thereof from Big Tech to skew the democratic process, as they have in the past, will be met with hard questions—and if necessary, legal repercussions.
As House Bill 5597 continues to move through the legislative process, legislators should consider solutions that would protect candidates and 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.
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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