North Dakota's New Anti-230 Bill Would Let Nazis Sue You For Reporting Their Content To Twitter

from the i-just-can't-even dept

Earlier this month, we wrote about how various Republicans in state legislatures were introducing blatantly unconstitutional bills that tried to do away with Section 230 and which all attempted to block the ability of websites to do any content moderation. Many of the bills were nearly identical (and may have come from Chris Sevier, the profoundly troubled individual, who somehow keeps convincing state legislators to introduce blatantly unconstitutional bills that attack speech online). One of the bills we mentioned was from North Dakota. Lawyer Akiva Cohen points out that the North Dakota bill has been updated... and (incredibly) made even more blatantly unconstitutional.

Most notably, the new amendment from Rep. Tom Kading, would not only gut Section 230, but would stop any website from doing any moderation of any user for their viewpoints. Any viewpoints. Anywhere (even off platform). And then... it adds in a private cause of action, saying that would allow a user to sue any website for moderation:

That says:

A user residing in, doing business in, sharing expression in, or receiving expression in this state may bring a civil action in any court of this state against a social media platform or interactive computer service for violation of this chapter against the user, and upon finding the defendant has violated or is violating the user's rights under this chapter, the court shall award:

1. Declaratory relief;
2. Injunctive relief;
3. Treble damages or, at the plaintiff's option, statutory damages of up to fifty thousand dollars; and
4. Costs and reasonable attorney's fees.

That's already bad, but it gets worse, because it also creates a private cause of action against anyone "aiding and abetting" the moderation:

That one says:

A user residing in, doing business in, sharing expression in, or receiving expression in this state may bring a civil action in any court of this state against any person who aids or abets a violation of this chapter against the user, and upon finding the defendant has violated or is violating the user's rights under this chapter, the court shall award:

1. Declaratory relief;
2. Injunctive relief;
3. Treble damages or, at the plaintiff's option, statutory damages of up to fifty thousand dollars; and
4. Costs and reasonable attorney's fees.

In other words, if you report a Nazi to Twitter, the Nazi can sue you for $50,000. Plus attorney's fees. What the actual fuck are they doing up there in North Dakota? And has it eaten their brains?

The only saving grace of this disastrously unconstitutional bill is that it moots itself. That's because it also has a clause that says that it "does not subject a social media platform or interactive computer service to any remedy or cause of action from which the social media platform or interactive computer service is protected by federal law."

So, um... Section 230 is federal law and it protects against literally everything in this bill. In other words, the only thing this bill serves as is a weird poison pill that if Section 230 is repealed or otherwise modified, then it might allow anyone in North Dakota to sue users for reporting their content to a social media platform.

Jerry Lambe, over at Law & Crime, reached out to Rep. Kading to ask about this bill and Kading's response is so ridiculous that it calls into question how this guy got elected.

“Social media may still censor within the constraints of Section 230. For example censorship of obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable content is completely appropriate under the bill,” he said in an email to Law&Crime. “If the neo-Nazi was censored for such, then the bill would not apply. Though section 230 gives broad protection, it does not protect against censorship outside the scope noted or prohibit regulation if consistent with the section. The bill does not affect any reporting actions.”

As Ari Cohn points out, this is both incoherent and suggests that Kading has no clue about how Section 230 or the 1st Amendment actually work. The 1st Amendment is what gives websites the right to remove whatever content they want. Section 230 just helps them get out of lawsuits over those removals faster. On top of that, the list that Kading mentions from "obscene" to "otherwise objectionable" is only in Section (c)(2) of the law, which almost never shows up in court cases. Courts have made it clear that Section (c)(1), which has no such limitations, is what enables cases to be dismissed regarding moderation choices.

You'd think that maybe someone like Kading would have bothered to learn some of this before (1) introducing a bill or (2) responding to a reporter's question about the bill. But apparently, that's not the kind of state elected official Tom Kading is.

North Dakota citizens: stop electing censorial, ignorant legislators who want to attack the 1st Amendment.

Filed Under: 1st amendment, aiding and abetting, content moderation, free speech, nazis, north dakota, reporting, section 230, tom kading

Various States All Pile On To Push Blatantly Unconstitutional Laws That Say Social Media Can't Moderate

from the that's-not-going-to-go-well dept

A bunch of Republican state legislators across the country are apparently unconcerned with either the 1st Amendment (or reality) have decided that they need to stop social media companies from engaging in any sort of content moderation. Earlier this week, Florida Man Governor Ron DeSantis proposed just such a law, which would be struck down as unconstitutional with amazing speed. The bill, dubbed the "Transparency in Technology Act" would do a bunch of things laid out in this infographic the Florida GOP sent around, almost all of which the state has no authority to do. On the content moderation front, it would require set standards for content moderation that can't easily be changed and require the company apply those standards consistently.

That's what lots of people ask for without realizing that's an impossible ask. "Consistency" is not nearly as clear as people seem to think it is. Every scenario is different, and context plays a huge role in determining these things -- but people who complain about inconsistent enforcement never seem to recognize the wider context, and always focus in on some superficial similarity about the content, and insist that different outcomes mean inconsistency. It also ignores the scale of the problem. It also fails to take into account that policies have to keep being updated, because the issues that trust and safety teams face constantly are changing.

This bill would be like passing a law saying that the state of Florida must clearly define all its laws, can't pass new laws, and must apply the law consistently. That's not possible.

Even more ridiculous (and more unconstitutional) is that the bill would bar any moderation (or removal) of any political candidate. Of course, this would just mean that any troll who wants to be a total asshole online would register to run for office. Remember, it was rumored that well known online troll Laura Loomer supposedly ran for Congress in part because of she believed that it would force Twitter to give her her account back (which did not happen).

Of course, it's easy to just point at Florida and say "there goes Florida again..." but it's actually Republican legislators in a whole bunch of states. And this wasn't even the first such bill in Florida. A week or so earlier, Republican state Senator Joe Gruters introduced a bill called the "Stop Social Media Censorship Act" which bars any moderation of "religious or political speech."

Gruters may have introduced the bill, but it doesn't look like he wrote it. Because in Kentucky, Republican Senators Robby Mills and Phillip Wheeler introduced a nearly identical bill. Oh, and over in Oklahoma, Republican Senator Rob Standridge also introduced an identical bill. In Arizona, it's Senator Sonny Borrelli who has introduced very similar legislation, though his looks a little different, and (insanely) would try to put into law that a social media website is "deemed to be a publisher" and "deemed not to be a platform" which is, you know, not a thing that actually matters. In North Dakota, there's Republican State Rep. Tom Kading who's similar bill also includes the nonsense publisher/platform distinction.

All of these bills are (1) nonsense, (2) pre-empted by federal law, and (3) blatantly unconstitutional under the 1st Amendment. A quick lesson for state legislators: the 1st Amendment means that the government (that's you!) cannot compel private parties (that includes social media companies!) that they have to host speech with which they disagree with. There's plenty of case law on this, but I'll point you to West Virginia State Board of Education v. Barnette which establishes quite clearly that the government cannot compel speech under the 1st Amendment. On top of that, I'll point people to the relatively recent ruling, written by Brett Kavanaugh (remember, Republicans, you supported this guy) and signed by all of the Conservative Justices, in the Manhattan Community Access Corp. v. Halleck case, in which it was made clear that social media websites are not state actors, and cannot be compelled to host speech. As Kavanaugh wrote in that ruling:

In short, merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.

If the rule were otherwise, all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints and would lose the ability to exercise what they deem to be appropriate editorial discretion within that open forum. Private property owners and private lessees would face the unappetizing choice of allowing all comers or closing the platform altogether. “The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use.” ... Benjamin Franklin did not have to operate his newspaper as “a stagecoach, with seats for everyone.” ... That principle still holds true. As the Court said in Hudgens, to hold that private property owners providing a forum for speech are constrained by the First Amendment would be “to create a court-made law wholly disregarding the constitutional basis on which private ownership of property rests in this country.” ... The Constitution does not disable private property owners and private lessees from exercising editorial discretion over speech and speakers on their property

Remember how, as Republicans, you guys used to always support private property rights and the right to exclude those you disagree with? It's that all over again, except now you're suddenly trying to argue the exact opposite.

It wouldn't surprise me if there were a bunch more of these unconstitutional bills floating around, or that more will be introduced soon. Most of them are performative nonsense that no state legislature will actually pass. But if they do, just recognize that any legislature that does so is throwing away taxpayer money on a series of expensive lawsuits that will inevitably end with the law being tossed out as unconstitutional.

Filed Under: 1st amendment, arizona, content moderation, florida, joe gruters, kentucky, north dakota, phillip wheeler, rob standridge, robby mills, ron desantis, section 230, sonny borrelli, states, tom kading