States Experiment with Un-Canceling Free Speech

March 9, 2021

Over the past few years, conservatives have noticed with increasing alarm as social media giants and other Big Tech companies pressed their thumb on the scales of public debate, muzzling one dissenting voice after another. These mega-corporations had successfully lobbied for special government carveouts on the theory that they provided a public forum that enabled free speech, but now aggressively work to censor news, facts, and opinions they don't like. But thankfully there are those working to bring their abusive behavior to an end.

With Congressional action out of reach for now, multiple state legislatures are considering legislation this session that would curb the pernicious tactics of Big Tech. Here are a few examples:

North Dakota. A bill allowing users whose speech is restricted to pursue civil action and seek damages has passed the state house and awaits action in the state senate. The law would allow both "the person whose speech is restricted, censored, or suppressed" and "any person who reasonably otherwise would have received the writing, speech, or publication" to sue any website with over one million users.

Florida. The Transparency in Technology Act would require social media giants to provide users with greater transparency and privacy and empower the state attorney general to enforce the measure. It would also impose election safeguards, including a $100,000 daily fine on any tech company that de-platforms a Florida candidate during the election cycle, and require tech companies to report any promotion of candidates as a campaign contribution. The bill is Gov. Ron DeSantis's top legislative priority.

Texas. A bill in the state senate, which Gov. Greg Abbott has endorsed, would permit users to sue social media platforms if they are banned due to their political or religious views.

Utah. The Electronic Free Speech Amendments Bill, introduced in the state senate, would require tech companies to provide more information to users, including notice of their moderation practices and access and opportunity to appeal a decision. It would also require them to announce when they ban or censor a user in Utah and submit to an independent review of their moderation polices. It would also allow users to file complaints with the state's Division of Consumer Protection.

But it's not just conservative states under Republican control. Even increasingly liberal Virginia is getting in on the game. Last week, Gov. Ralph Northam (yes, that one) signed the Consumer Data Protection Act, allowing users to be notified and have the right to opt out of big tech exploiting users' data for profit.

It remains to be seen which bills become law, which laws withstand the inevitable legal challenges, and which states are successful. But that's the beauty of America's federal system; when power is decentralized among the several states, they can experiment to find out what works. That's why states are called "laboratories of democracy," although they don't receive enough credit.

The point is, Americans have always been wary of too much power consolidated into the hands of too few, be they government bureaucrats, Gilded Era robber barons, or Silicon Valley executives. Whenever one group rigs the system for their own benefit, our constitutional order has other checks and balances we can use to help the system self-correct.