After Trump ban, deep red state North Dakota brings law allowing censored citizens to sue Facebook and Twitter
Ever since President Donald Trump has been banned by major social media platforms like Twitter, Facebook and others, the conservative camp of American politics has accused tech giants like Facebook and Twitter of being biased. The controversy got complicated after a number of big tech companies targeted conservative social media Parler, and now, it’s the turn of Facebook and Twitter to face the music.
Ars Technica said in a report on Wednesday, January 13, that GOP state lawmakers in the deep red state of North Dakota want users who have been “censored” by the likes of Facebook and Twitter to sue them. A bill towards this effect was submitted by six legislators last week under the title “an Act to permit civil actions against social media sites for censoring speech”.
It said social media websites with more than a million users would be “liable in a civil action for damages to the person whose speech is restricted, censored, or suppressed, and to any person who reasonably otherwise would have received the writing, speech, or publication”. Payouts for “censored” users would include “treble damages for compensatory, consequential, and incidental damages”, the Technica report added.
It also said that the bill, if passed by the North Dakota legislature, would likely have zero effect because of a conflict with the federal law. The proposed law “would immediately be deemed void as preempted by Section 230 [of the Communications Decency Act]”, because “federal law is supreme over state law where they conflict, and this would create an express conflict,” attorney Akiva Cohen analyzed in a series of tweets on Monday, January 11.
Let's talk about this North Dakota attempt to legislate around Section 230 and create a civil right of action for users censored by social media sites. CC @mmasnick https://t.co/duKzUx1K40— Akiva Cohen (@AkivaMCohen) January 11, 2021
Forget, for a moment, that this law, if it passed would immediately be deemed void as preempted by Section 230 (Federal law is supreme over state law where they conflict, and this would create an express conflict). This bill is a really good example of why this stuff is hard— Akiva Cohen (@AkivaMCohen) January 11, 2021
Here's the key provision of the bill. The various highlighting on these versions shows areas we'll touch on pic.twitter.com/secAQRlOko— Akiva Cohen (@AkivaMCohen) January 11, 2021
First of all, let's look at the last of those images. There's no question that this would target conduct immune under federal law - and, in fact, if 230 were repealed nobody could ever be liable under this law (since it only reaches immune conduct). So it's incredibly stupid. pic.twitter.com/V1HWq6Kpu6— Akiva Cohen (@AkivaMCohen) January 11, 2021
But again, put that aside. Let's look at the substance.— Akiva Cohen (@AkivaMCohen) January 11, 2021
First of all, who gets to decide whether content fits into these highlighted categories? Do they actually think that the government will get to decide what counts as "otherwise objectionable"? pic.twitter.com/abp9zVp6ai
Section 230 of the Communications Decency Act which was enacted in 1996, says providers and users of interactive computer services will not be held liable for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected”.
“The law thus gives legal protection to companies that moderate user-generated content on the online platforms they operate. The law has been a major topic of controversy recently, particularly among Republicans, with President Trump demanding that social media companies be stripped of their legal immunity,” the Technica report said.
'It's wrong to ban a sitting president'
GOP Representative Tom Kading is the lead sponsor of the bill and he is upset with Facebook and Twitter for banning Trump on charges of inciting his supporters to storm the Capitol Hill to protest the results of the 2020 presidential election. Kading side it’s wrong to ban a sitting president but also added that his proposal is aimed at providing a legal tool only for those who live in the Peace Garden State, the state’s Grand Forks Herald daily reported.
According to Kading, 34, Facebook and Twitter breach the terms of agreement signed by the users when they undertake the action of banning or restricting content related to politics. He said some North Dakotans earn from social media and unjust restrictions muzzle their political viewpoints.
The Herald cited Gene Policinski, chief operating officer of Freedom Forum Institute, Washington DC, who said Kading’s bill has little effectiveness since social media users who have been censored have willingly agreed to abide by the social media sites’ terms of service that say users can be shown the door for certain behavior.