By the narrowest of margins, the Utah House approved a bill that wades into the sticky subject of moderating content on social media. But, the legislation likely runs afoul of the U.S. Constitution and could lead to expensive litigation against the state.
“This doesn’t dictate how they moderate content. It just says you need to say how you’re going to do it and do it fairly,” said Rep. Brady Brammer, R-Highland.
SB228 requires social media platforms to clearly state their content moderation policy, and inform Utah users within 24 hours when they run afoul of it. There’s also a requirement that those companies provide an appeals process for Utah account holders.
The 24-hour notification requirement is not applicable if the content in question is deemed to be a threat to themselves or others.
Additionally, the bill allows Utah users who feel they have been treated unfairly to make a complaint to the Utah Division of Consumer Protection, which can refer the matter to the Utah attorney general. There’s also a mechanism for the attorney general to take civil action against the social media company that may result in a fine of up to $1,000 per consumer.
During debate Thursday, several lawmakers said the proposal was an unconstitutional government intrusion into the dealings of private businesses.
“Do public free speech requirements apply to your private property?” asked Rep. Ryan Wilcox, R-Ogden, rhetorically. “We choose voluntarily to participate on these platforms. When we do that, we don’t get to dictate the terms of our engagement on their property. We can’t pretend that it’s something else until it’s owned by the public.”
“What we are talking about here are large, private forums that are free to moderate themselves and to put up what they want to put up and censor and kick off those people they choose to,” added House Minority Leader Brian King, D-Salt Lake City. “If we pass this bill, the Utah taxpayers are going to pay large amounts of money to defend the constitutionality of this bill against a lot of large entities that have many resources.”
Brammer shot back that he was not made aware of any constitutional issues with the legislation. However, a legal analysis from the Office of Legislative Research and General Counsel shared with The Salt Lake Tribune raises several potential constitutional and legal problems.
Legislative attorneys advised that HB228 may violate the First Amendment by compelling speech through requiring these companies to provide information about their moderation practices, although that may not be an impermissible burden given their vast resources.
The memo also warns the bill could violate the Constitution by placing an “undue burden on interstate commerce.”
Finally, the legislation might be unenforceable because of provisions in the federal Communications Decency Act.
The current version of the bill delays implementation for a year until June of 2022, which supporters say provides time to make any necessary changes and bring the different stakeholders to the negotiating table.
“These companies have become more of a pubic square. Once it starts to feel like they’re picking and choosing which messages are published and which aren’t, then you’re not really a platform anymore,” argued Brammer. “This provides a little bit of a backstop that says they can choose what they moderate, but you have to be fair.”
The bill passed on a 39-35 vote, just one vote more than the minimum required.
Gov. Spencer Cox’s office did not take a position on the bill, but a spokesperson told The Tribune on Thursday evening that he is looking at it carefully.