How to Strike Back Against Big Tech Censorship

A number of people around the country are working on the problem of censorship of conservative speech by the technology behemoths, especially the social media platforms like Facebook and Twitter. For now, it seems clear that federal action is foreclosed. The Democrats have no intention of doing anything to disrupt a situation that is highly favorable to them. So for the foreseeable future, all the action will be at the state level.

I have embedded below the bill that has been drafted here in Minnesota, and will be introduced in the state’s Senate tomorrow. It is couched in terms of discrimination, and it prohibits internet service providers and social media companies from restricting users’ content on the basis of race, sex, religion or political orientation. The bill includes statutory damages of $50,000 per violation, along with recovery of attorneys’ fees. It creates an implied duty of good faith and fair dealing, including non-discrimination, in all applicable terms of use.

Some have asked whether I am worried about federal pre-emption under Section 230 of the Communications Decency Act. The short answer: not very. I think the case for pre-emption, vis-a-vis a statute like the one proposed in Minnesota, is very weak.

Bills have been drafted in a number of other states, and in some cases introduced. Florida has a bill that I have not read, but that Governor Ron DeSantis talked about today in a press conference. He did a terrific job, but did not explain in detail what the bill says. One feature: it bars social media platforms from deplatforming political candidates during an election campaign, with substantial fines. You can see DeSantis’s press conference in a Twitter feed here. This two-minute segment is entertaining. Quotable quote: “You can whiz on my leg, but don’t tell me it’s raining.”

I will have more to say about the Florida legislation and bills being introduced in other states in the weeks to come.

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