The Pennsylvania Senate Committee on Consumer Protection and Professional Licensure will soon consider Senate Bill 604, also known as “An Act Providing for Stopping Social Media Censorship, for Cause of Action and for Penalties.” This legislation would provide citizens of the Keystone State a private cause of action in court if they have been unduly censored or “de-platformed” on one of the various social media platforms.
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. The emerging technologies and mediums promised democratization of free speech in a way never dreamed of.
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 this power to these titans has now effectively erased the empowerment of millions of Americans and their newfound voices. Where 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 16-years-old, 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 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 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.
All of these data points provide ample evidence that social networks have become much more than hosts for expression, memes, and life updates among friends and family. In 2021, the social network 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 have the ability to impact and 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.
Additionally, 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 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 Pennsylvania’s Senate Bill 604 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. Many other states have introduced comparable legislation, such as Florida’s Senate bill 7072 and Texas’ Senate Bill 1158.
Like its predecessors, SB 604 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.
Pennsylvania’s Act Providing for Stopping Social Media Censorship would address 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.
The bill also states 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, encouraging self-harm, posting obscenities, and creating posts pornographic in nature, as well as other provisions. These exemptions included in the legislation ensure SB 604 comports with federal law, specifically Section 230 of the 1996 Communications Decency Act.
Moreover, under Senate Bill 604, a social media website user may be awarded up to $75,000 if he or she has been found to be censored for political or religious speech. This figure is paramount when it comes to subject matter jurisdiction. Residents of Pennsylvania, 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, these entities have been insulated from liability because they claim to be mere platforms, not editorial in nature. However, these platforms do operate in an editorial capacity. SB 604 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), that allows state legislatures to enforce respective state laws so long as they are consistent with Section 230. As is the case with Senate Bill 604. 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 604. 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 604 also holds provisions for instances in which any political candidate seeking office in Pennsylvania is deplatformed or “shadowbanned” by a social media website. According to this provision, if the candidate is seeking statewide office, there is an additional fine of $100,000 per day of the violation. Furthermore, the social media companies must disclose their algorithmic bias for or against a political candidate seeking statewide office under paragraph (1) as a campaign contribution. This is important because the banning of a candidate on social media can, and will, inevitably impact their campaign efforts.
Senate Bill 604 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 Pennsylvania citizens the message that robust public debate is sacrosanct and any action or failure to act to maintain a robust debate will be met with hard questions, and if necessary, legal repercussions.
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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