The South Carolina General Assembly has introduced House Bill 3102, which would protect free speech on social media platforms for South Carolinians. This legislation provides citizens of the Palmetto State an avenue to seek a private cause of action and possible financial damages if their online free speech has been blocked, restricted, suspended, terminated, removed, or banned.
The emergence of social media has elevated political dialogue and discourse to a breadth nearly unimaginable a decade ago. When originally developed, these emerging technologies and mediums made the democratization of free speech possible.
However, this mass communication network is managed by a handful of large tech firms that are protected from liability and functionally operate as monopolies. The consolidation of public discourse control amongst these firms has now effectively muted the speech of millions of Americans. Though it has empowered people across the political spectrum, it has also galvanized those who seek to divide, misinform, and manipulate the public.
As of today, nearly 70 percent of the U.S. population (231.5 million Americans) is active on social media, making social media platforms such as Facebook and Twitter the primary channels of communication in the twenty-first century. In addition, U.S. social network advertisement spending hit 56.85 billion in 2022, a substantial increase from 40.34 billion in 2020, according to statista.
These data provide ample evidence that social networks have become much more than mere hosts for expression, memes, and life updates among friends and family. In 2023, social media has become a major sector of the United States economy, influencing corporate successes and failures and even driving agendas.
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. This belief was corroborated with the release of the Twitter Files which showed us that these social media companies were more than happy to get into bed and coordinate with the government to promote certain agendas and narrates.
The policy solution in House Bill 3102 is akin to what several states have pursued in efforts to ensure the First Amendment rights of their constituents. Most notably, Florida and Texas have gained national attention due to bills being challenged in the courts.
These laws currently sit in judicial purgatory while the Supreme Court considers their fate. However, Justice Clarence Thomas has previously indicated that he expects some form of common carriage regulation may be the path forward for social media, much in the way Texas’ law proscribes.
Prior to being appealed to the Supreme Court, the Fifth Circuit Court of Appeals ruled that Big Tech has overstepped its legal bounds as platforms for free speech based upon the Texas law. The judges of the Fifth Circuit emphatically stated, “We reject the platforms’ attempt to extract a freewheeling censorship right from the Constitution’s free speech guarantee.”
The Fifth Circuit’s ruling protects the aforementioned Texas law on constitutional grounds. It represents a significant win for online free speech in the Lone Star State, while also signaling a victory for all individuals and organizations across the country who have championed First Amendment rights since the onset of this debate.
HB 3102 would hold that if Big Tech censors an individual for political or religious speech, that individual would have the ability to file suit against them.
HB 3102 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 HB 3102 comports with federal law, specifically Section 230 of the 1996 Communications Decency Act.
Under House Bill 3102, any user of a major interactive computer service who has had their speech censored may be awarded up to $75,000 in statutory damages for each instance in which the social media platform restricted, censored, or suppressed that person’s content. This figure is paramount when it comes to subject matter jurisdiction. Residents of South Carolina, 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.
Moreover, HB 3102 protects individuals who may be a political candidate seeking office in South Carolina. If an incumbent or political candidate has been deplatformed or shadowbanned, they are eligible for up to $100,000 per day of the First Amendment violations. This is key in preserving democracy in the Palmetto State, as citizens should have full unincumbered access to those who would like to or may be representing them politically.
Big Tech has long been insulated from liability because they claim to be mere platforms. Yet, these platforms operate in an admitted editorial capacity. House Bill 3102 would lift their liability shield, making them susceptible to lawsuits from South Carolinians who have been unfairly de-platformed.
House Bill 3102 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 a tool policymakers need to give the citizens of South Carolina the message that robust public debate is sacrosanct. Any action or lack thereof to maintain a vigorous debate will be met with hard questions, and—if necessary—legal repercussions.
As House Bill 3102 continues to move through the legislative process, policymakers should consider solutions that would protect all Americans from undue censorship by 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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Samantha Fillmore is a State Government Relations Manager for The Heartland Institute.
