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Utah lawmakers are closely watching legal efforts elsewhere that would combat perceived censorship by social media platforms. Earlier this month a federal judge blocked a Florida law that let the state to fine social media companies that banned candidates on their platforms ahead of an election.
Gov. Spencer Cox vetoed a bill by Sen. Mike McKell, R-Spanish Fork, that sought to put regulations on how social media companies moderate content on their platforms. McKell wanted social media networks to give notice when they remove content from an account holder in Utah, and give that individual an opportunity to appeal the decision. The bill also created a mechanism for the Utah attorney general to seek monetary damages resulting from user complaints.
Opponents of McKell’s bill repeatedly warned the legislation was unconstitutional and would almost certainly face a court challenge. Even so, the bill passed before being vetoed.
McKell admits his bill did not go as far as the Florida legislation, which could impose fines on social media companies of up to $250,000. But he still believes there’s an opening for Utah to put some limits on the practices of these companies, which he argues are enforced unfairly and arbitrarily.
“There’s certainly some openings for us to push for consistency with how these platforms handle content,” McKell said.
McKell plans to bring a revamped proposal to the 2022 legislature in January. He says he’s carefully watching legal challenges to social media-focused bills in other states to help chart his path forward. McKell plans to start meeting with representatives of social media companies and other interested parties shortly.
Senate President Stuart Adams, R-Layton, is also eyeing ways to rein in social media platforms. He’s attempting to assemble a multi-state coalition on the issue, which he says will force social media companies to the negotiating table.
Both McKell and Adams say their concerns are borne from the perception that social media companies are biased against conservative voices. That’s not exactly true, as studies show right-wing influencers have some of the biggest voices online and often dominate platforms. Technology columnist Kevin Roose runs a Twitter account that tracks the daily top-10 performing pages on Facebook. The list is often dominated by conservative and right-wing outlets.
Any bill McKell or Adams passes will run smack into protections afforded to social media platforms by the First Amendment, which says the government cannot force private companies to host content they don’t want to.
“Balancing the exchange of ideas among private speakers is not a legitimate governmental interest,” wrote Judge Robert Hinkle in his opinion blocking Florida’s law.
“The First Amendment does not give me the right to pop into your office and start ranting about whatever I want and you can’t kick me out. These people want the ability to go on Facebook, Twitter or wherever else, saw whatever they want and leave the companies powerless to respond and control what happens on their platform,” First Amendment lawyer Ari Cohn said.
Cohn says Adams’ stance is especially hypocritical given that he signed on to an amicus brief in support of a Colorado cake baker who refused to make a wedding cake for a same-sex couple because it violated his First Amendment rights. The Supreme Court ruled in favor of the cakeshop owner.
“Forcing Twitter to post and host speech that it finds not compatible with its message or its beliefs. How does that not violate the First Amendment in the same way?” Cohen asked.
It’s not only states seeking to put the leash on social media. Last week former President Donald Trump announced a series of class-action lawsuits against Facebook, Twitter, and YouTube for illegally censoring him. Trump has been permanently banned from Twitter and is barred from using Facebook for at least two years.
Free speech experts doubt Trump’s lawsuit has much chance of success. In fact, his political arm started using the lawsuits as a fundraising tool shortly after his announcement.