One of the many benefits of our system of federalism is that states can experiment with different policies, and if successful, other states and even the federal government can consider adopting them.
However, this system only works well if states also learn from their peers’ prior mistakes and refuse to import seriously flawed reforms.
Some Georgia lawmakers would be wise to learn this lesson. After all, earlier this year they flirted with passing a problematic—and possibly unconstitutional—piece of legislation to regulate social media platforms. While it ultimately failed to cross the finish line, I’d wager that the proposal will return next year.
In large part, the measure was intended to prohibit large social media platforms like Facebook and Twitter from banning users or censoring them based on their personal beliefs. I agree that individuals shouldn’t be unfairly silenced based on their political, ideological or religious convictions, but the legislation resembles attempts in other states and is riddled with problems.
For starters, there are serious constitutional questions over whether the government has the authority to force private companies to host various kinds of speech or if this would be a violation of the First Amendment.
Aside from this, under the bill’s original language, it would have forbidden platforms from removing any content—save for posts that are illegal, “obscene, lewd, lascivious, filthy, excessively violent, or harassing”—from a user who either resides in Georgia or “shares or receives expression in this state.” This may sound like a reasonable approach at first glance, but a measure like this could quickly and easily spiral into something pernicious.
As a result of its provisions, it seems as though social media platforms would have largely been powerless to remove spam or even disinformation sponsored by foreign governments so long as a Georgia-based user posted it or the expression was shared or received here. What’s more, if social media companies decided to remove any posts, then it would have encouraged users who felt that their posts had been wrongly removed to sue the businesses.
Such a proposal could have made Georgia a launching ground for widespread spam and disinformation, and could have made social media companies the targets of endless frivolous lawsuits. Yet, prior case law and Section 230 of the federal Communications Decency Act has long afforded social media companies the right to self-police content on their platforms, which makes sense. They are private entities with their own constitutionally guaranteed free speech protections, and the government doesn’t know how to run their businesses better than they do.
Even if there’s only a perception of unfairly targeted censorship existing, then perhaps improvements can be made, but it seems as though they should voluntarily come from the companies in question. Nevertheless, in a move similar to the Georgia bill of 2022, Florida passed legislation in 2021 that “would have prohibited certain social media platforms from banning political candidates or ‘journalistic enterprises’ from their services,” according to Vox.
Before the measure could go into effect, the courts blocked it. More than a year later, the 11th Circuit Court of Appeals found most of the Florida law unconstitutional, in part, because “the panel found that tech companies’ content moderation decisions are protected by the First Amendment, which prohibits the government from regulating free speech,” wrote The Washington Post.
Similarly, Texas lawmakers passed a bill that closely mirrors Georgia’s content moderation proposal. Last December, a U.S. District Court found that it violated the First Amendment, and that effectively put the legislation on ice until a higher court ruled on it. However, the Fifth Circuit Court of Appeals recently reversed that decision, but last week, the U.S. Supreme Court placed the Texas law back on hold as the lawsuit proceeds. This sets up a likely showdown in the high court over the constitutionality of the bill. I wouldn’t even be slightly surprised if the Supreme Court tosses this piece of legislation out with the rubbish.
Regardless of how the U.S. Supreme Court may rule, it is clear that these attempts to regulate speech and how private companies operate are fraught with issues. While the states are the laboratories of democracy, Georgia would be better served to reject the rush to replicate policies that are obviously problematic.
Even so, some people are worried about reports of tech companies targeting individuals based on their ideology, but the beauty of a free market system is that consumers can vote with their feet. They aren’t married to any social media platform, and there are many available alternatives with varying policies. Rather than asking for increased government involvement in private business matters, it would be better to let the free market take its course and consumers choose what platforms and policies that they want to personally support.
Marc Hyden is the director of state government affairs at the R Street Institute. You can follow him on Twitter at @marc_hyden.