By NOAH TABORDA
Kansas Reflector
TOPEKA — A bill backed by Republican legislators to prohibit social media censorship raised flags Wednesday of possible litigation and unconstitutionality.
Under Senate Bill 187, social media platforms would still be able to censor speech that is obscene, lewd, excessively violent, harassing or otherwise objectionable as described in Section 230 of the Communications Decency Act of 1996. However, censorship of any harassing or objectionable material that is a form of political expression would not be allowed.
Violations would be reported to the attorney general, who would then be required to investigate and possibly take action to seek relief. The fiscal note attached to the bill indicated if a major social media platform’s terms of service are not compliant with this act, the number of potential complaints could be in the thousands.
The bill is a response to frustration among federal and state lawmakers of the banning and removal of certain users or posts on websites like Twitter, Facebook, YouTube, Instagram, and others. Sen. Mark Steffen, R-Hutchinson, characterized these acts as the unjust suppression of conservative viewpoints like his own.
“Our bill continues to give the entities the right to censor what we do,” Steffen said. “It provides remedies through the attorney general. It provides a remedy for the individual through statutory damages, and it does ultimately level the playing field.”
Steffen was joined by a state representative and official with the Kansas Republican Party in asking the Senate Federal and State Affairs Committee to give the bill a stamp of approval. Opponents said this bill would violate the First Amendment and open the door for costly legal battles.
Rep. Tatum Lee-Hahn, R-Ness City, described the removal of social media posts as an attack on the liberties of rural America. Laura Tawater, a Kansas Republican Party officer who attended Jan. 6 Capitol riot and came under fire for an inflammatory and false post on her Facebook page, also testified in support of the bill.
“RIGGED ELECTION!” Tawater wrote on her Facebook page on the morning of the insurrection. “Communists hijacked our country and destroyed our election process. TAKE IT BACK PATRIOTS. #GeorgiaWasStolen #LiberityOrDeath #AmericanRevolution”
Sen. Oletha Faust-Goudeau, D-Wichita, questioned how this law in Kansas would work within the bigger picture of federal law around social media. Steffen said Kansas is but a grain of sand to these platforms, so they have been working with other state legislatures to pass this bill across the county.
However, these efforts are already hitting roadblocks. On Tuesday, a similar bill was vetoed when it arrived at the desk of Republican Utah Gov. Spencer Cox. Cox too expressed frustration, but like tech advocates who testified in Kansas Wednesday, he was unsure this bill would stand up against legal challenges.
Steve Delbianco, president and CEO of NetChoice, an internet free speech advocacy and lobbying group, described himself as a lifelong conservative. NetChoice members include companies like Amazon, Google, Facebook and Twitter.
Delbianco recalled going door-to-door campaigning for Richard Nixon in a time when communicating across a broad spectrum of independent and moderate individuals through technology like social media was impossible. That is why a bill he said would alienate people who identify as moderate was so alarming to him.
While Delbianco said he too was frustrated by what he felt was unequal management of content by social media, but the issue with the measure boils down to a violation of First Amendment rights.
“The First Amendment prohibits government from compelling people or newspapers or social media to carry speech that they don’t want to display,” Delbianco said. “So if SB 187 will likely be enjoined and overturned on First Amendment grounds, what happens next? All you’ll have done is to encourage moderators by confirming that state governments cannot violate the First Amendment.”
Instead, Delbianco urged those who are frustrated to use other, conservative-oriented social media platforms to vent while maintaining a “town hall voice” on widely used platforms like Twitter.
Tyler Diers, of Midwest TechNet, said the bill also runs contrary to federal rules empowering online intermediaries to remove harmful content under the same immunity that exists in “real-world, offline contexts.”
Additionally, social media companies already understand their responsibility to censor material in an unbiased manner, Diers said. However, with hundreds of thousands of posts each day, some errors will inevitably occur, he said.
“It would be fundamentally unfair to implement such a draconian penalty for instances where code misfired, or a simple mistake was made,” Diers said. “As written, the scope of the bill will also affect many other businesses as well, such as news sites, platforms for hosting reviews and comments, business to business services, and educational learning platforms.”