Bill Description: House Bill 323 would allow social media users to sue a large social media platform that censors or deplatforms them.
Does it give government any new, additional, or expanded power to prohibit, restrict, or regulate activities in the free market? Conversely, does it eliminate or reduce government intervention in the market?
House Bill 323 creates Chapter 20, Title 48, Idaho Code, to establish a procedure for social media users to sue a large social media platform that censors or deplatforms them.
This bill attempts to tackle the problematic and widespread practice of social media platforms engaging in targeted censorship and other tactics to silence certain viewpoints. These techniques are alleged and widely believed to have played a significant role in the outcomes of recent elections.
The provisions of this bill are limited to protecting religious and political speech on social media platforms that have more than 75 million subscribers. While this may seem like a very large number, it includes many sites beyond Facebook, YouTube and Twitter, such as Instagram, Snapchat, Pinterest, and TikTok. The bill's definition of "social media website" does not make it clear if it would also apply to messaging apps such as Facebook Messenger, WhatsApp, and Telegram. It could potentially include discussion forums such as Reddit and Quora as well.
This bill will allow a "private right of action" by a social media user if a social media website purposely "deletes or censors the user's religious speech or political speech" or "uses an algorithm to disfavor, shadowban, or censure the user's religious speech or political speech."
The bill's definitions of "political speech" and "religious speech" may leave room for interpretation.
Political speech is defined as "speech relating to the state, government, body politic, or public administration as it relates to governmental policy and includes speech by the government or candidates for office and any discussion of social issues."
Religious speech is defined as "a set of unproven answers, truth claims, faith-based assumptions, and naked assertions that attempt to explain such greater questions such as how the world was created, what constitutes right and wrong actions by humans, and what happens after death."
Exceptions are made for censoring content that "calls for immediate acts of violence," "calls for a user to harm himself," "is obscene material or material harmful to minors," "is the result of a court order," "involves false impersonation," "entices criminal conduct; or involves minors bullying minors."
It should be noted that if these exceptions are interpreted broadly, political speech encouraging protests, for example, might be tagged as "enticing criminal conduct" even if there is no direct solicitation of harmful or illegal behavior. This type of (arguably intentional) misinterpretation has already been widely deployed by social media to censor conservative political speech.
A social media user who prevails at trial shall be awarded a "minimum of seventy-five thousand dollars ($75,000) in statutory damages per purposeful deletion or censoring of the social media website user's speech," "actual damages," "punitive damages" (if "aggravating factors" are present), and "other forms of equitable relief."
While the goal of protecting political and religious speech is laudable when it involves opposing government censorship, it becomes problematic when it is used as a pretext to regulate and control private businesses and platforms. There are well-founded concerns about the choices made by social media companies in recent years, but they should not be a reason for preventing private companies from setting their own policies, or setting and enforcing contractual terms with its users.
The free market allows users to 'vote with their feet' and move to other platforms that are more compatible with their ideas and beliefs.
If the state really wishes to send a message to social media companies that engage in censorship, perhaps it should cease using those platforms and move to alternative platforms that embrace free speech. Imagine the publicity if state governments and agencies started canceling their Facebook and Twitter accounts and moving to other platforms, such as Parler and MeWe.
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