Experts say Standridge's social media bill unconstitutional

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Feb. 26—A bill that would allow social media users to sue social media companies for "censoring" their political or religious speech passed through the Oklahoma state Senate Judiciary Committee Tuesday, but experts say the legislation violates multiple laws and is unconstitutional.

Authored by Oklahoma state Sen. Rob Standridge, R-Norman, S.B 383 would allow Oklahomans to sue any social media company that "deletes or censors a social media website user's political speech or religious speech; or uses an algorithm to suppress political speech or religious speech."

Standridge did not respond to The Transcript's multiple requests for comment.

Social media companies could be charged a minimum of $75,000 per intentional deletion or censorship of a user's speech, the bill reads.

"There have been cases where social media posts discriminate against conservative views and social media platforms censor or delete posts supporting those views," Standridge said in a press release. "Nonviolent political posts are being censored just for having a differing opinion and citizens should be able to have a chance at civil recourse."

The bill also states that the Attorney General's office has the right to bring up "civil cause of action" on behalf of the user who feels they were censored by the social media company.

Attorney General Mike Hunter's office declined to comment for this story, saying it does not comment on pending legislation.

Bills of this nature have also popped up across the country, including in neighboring states such as Missouri and Kansas.

In Kansas, a bill authored by state Sen. Mark Steffen, S.B 187, is nearly identical to Standridge's bill.

The difference between Steffen's bill and Standridge's is that Steffen's looks to amend an already existing act — the Kansas Consumer Protection Act — by limiting what can be in a social media company's terms of service, while Standridge's bill only states that any censorship of political or religious speech would be deemed illegal.

"[Since] we're coming at them from the Kansas Consumer Protection Act, [it] really gives us the opportunity to have some say in what they can and can't do," Steffen said.

Steffen's bill specifies what is not allowed in the terms of service, stating that "the terms of service for use of a social media website operated by such service shall include any provisions that authorize such service to restrict, censor or suppress information that does not pertain to obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable subject matter.

"For purposes of this section, the terms 'harassing' and 'objectionable subject matter' do not include content that provides political information or expression."

Steffen wrote this bill and had input from his son Collen Steffen, who is an associate at McAfee & Taft in Oklahoma City, he said.

"I tell people this is a bipartisan bill," Steffen said. "Because today, the gun may be pointed at me [as a] conservative, and tomorrow it could be pointing at [a] liberal, and I don't think any of us in the heartland aspire to an unlevel playing field."

In Missouri, H.B 482, authored by state Rep. Jeff Coleman, is nearly identical to Standridge's bill, and even seeks the same punishments, including the minimum $75,000 fine per deletion.

Coleman did not immediately respond to The Transcript's request for comment.

"This bill is going around state legislatures [across the country] and it's super unconstitutional," said Shoshana Weissmann, a fellow at the Washington, D.C.-based nonpartisan nonprofit think tank The R Street Institute. "It looks pretty much identical to the others."

Weissmann said she often gets frustrated with the political left's attempts to outlaw hate speech, since it is not necessarily illegal, but noted that social media platforms' terms of service specifically define hate speech, and users must agree to not partake in hate speech. She said that it is unconstitutional to penalize companies' methods of moderation.

"One, it's stupid to suggest that hate speech must stay up — it's the platform's choice," she said. "And two, it's just unconstitutional. Just as the government cannot outlaw hate speech nor can it require hate speech to go unmoderated, that is a violation of the First Amendment discriminating on speech on an arbitrary basis."

This issue was brought up in the bill's committee hearing, during which Standrige defended his bill.

"Since we're not having a court rule whether it's hate speech or not, we're trying to reduce the acceptable means of censorship to those means that violate the rules within the social media companies, such as inciting violence," Standridge said.

In its Hateful conduct policy, Twitter states that any posts that "promote violence against or directly attack or threaten other people on the basis of race, ethnicity, national origin, caste, sexual orientation, gender, gender identity, religious affiliation, age, disability, or serious disease," are prohibited, and that Twitter "do(es) not allow accounts whose primary purpose is inciting harm towards others on the basis of these categories."

In Standridge's bill, he defines hate speech as "a phrase concerning content that an individual arbitrarily finds offensive based on his or her personal moral code."

Although the senator defines hate speech in his own words, Weissmann said social media companies still have the right to remove posts that violate their own terms of service.

"It's ridiculous to require a social media website to keep hate speech up for any reason," she said. "...You don't even have to be a First Amendment expert to see just how bad it is — and not just that, but then also Section 230 preempts state law, so this kind of violates 230, so you have that side of it that is incompatible with federal law and it's just plainly incompatible with the constitution."

Section 230 of the Communications Decency Act provides protections to social media platforms when they block or screen offensive material.

Weissmann said because of Section 230's provisions, she believes this bill will be challenged and immediately struck down in court.

"A big reason 230 was passed and introduced in the first place was because before 230, there was this thing called the moderator's dilemma," she said. "[Because of this] a platform moderated nothing so that they wouldn't be found liable for content. and if they did moderate and try to keep it family friendly on their platforms, then they could be found liable for speech they had no idea existed at all."

Nicole McAfee, director of policy and advocacy at the ACLU of Oklahoma, said that this is not the first time this legislation has come up in Oklahoma. McAfee said the first problem her organization has with the bill is that it is "definitely unconstitutional."

"It explicitly prohibits a social media site from moderating hate speech, and publishers aren't required to carry anyone's speech," McAfee said. "It's also preempted by Section 230 of the Communications Decency Act. This has a lot of clear legal issues in addition to the implications of it potentially becoming law."

McAfee said she believes Standridge is capitalizing on the current political climate and many Republicans' feelings toward social media platforms to rally support behind his bill.

"Sen. Standridge is currently using feelings in this moment and capitalizing on events to advance his legislation, but it's my hope that as the Senate [begins to] reviews their agendas and what it has capacity to prioritize this session, that it will be pretty clear to leadership that this is unconstitutional legislation that isn't worth the time or energy of that body," she said.

Reese Gorman covers COVID-19, local politics and elections for The Transcript; reach him at rgorman@normantranscript.com or @reeseg_3.

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