The Oklahoma Senate is considering Senate Bill 383, an Act Relating to the Censorship of Social Media. This legislation would provide Oklahomans a private cause of action in court if they have been unduly censored or “de-platformed” on the various social media platforms that have become ubiquitous in contemporary political speech.
In the blink of an eye, the emergence of social media platforms has elevated the national conversation and political discourse to a breadth nearly unimaginable a decade ago. The associated emerging technologies and mediums promised democratization of free speech in a way never dreamed of before. Free speech and political activism, once the realm of partisans and professional pundits, would be accessible so that people who were once spectators were now engaged.
However, this mass communication network is managed by a handful of powerful tech titans, who are protected from liability and operate as monopolies. The consolidation of this power to these titans has now effectively erased the empowerment of millions of Americans and their newfound voices. Where it has empowered voices and people across the political spectrum, it has also empowered the voices that seek to divide, misinform, and manipulate.
According to Statista, the number of social network users worldwide reached 3.6 billion in 2020 and is projected to increase to 4.4 billion by 2025. According to Datareportal, the average time a person spends on social media per day is 2 hours and 24 minutes. At that rate, if someone were to sign up for social media accounts at 16 years old, they would spend 5.7 years on social media platforms by the time they reach their 70th birthday.
Furthermore, more than 231 million Americans are active on social media, 70 percent of the U.S. population. In other words, social media platforms such as Facebook and Twitter have become the primary sources of communication in the twenty-first century. Just like television replaced the radio as the main medium of communication in the mid-twentieth century, social media reigns supreme today.
This phenomenon was further exacerbated by the coronavirus pandemic. A Harris Poll conducted in the spring of 2020 found 46 to 51 percent of U.S. adults were using social media at higher rates than they were pre-pandemic. In addition, U.S. social network ad spending is projected to rise 21 percent from the already staggering $40 billion spent in 2020 to around $49 billion in 2021, according to eMarketer.
All of these statistics provide ample evidence that social networks have become so much more than a host for expression, memes, and life updates among friends and family. In today’s world, the social network has become the public square as well as a major sector of the United States economy, influencing corporate successes and failures.
Along with influencing streams of revenue through advertising, we have seen more clearly than ever that social media platforms have the ability to impact and even guide the social discourse. Combining this with the highly divisive political and social climate that has plagued the nation in recent years, America has entered the era of social media censorship.
Following the unparalleled censorship of the president of the United States (and others) in January by Facebook and Twitter, many Americans worry they could be next. Big Tech’s arbitrary clampdown on those they deem guilty of spreading “misinformation” or “disinformation” has also raised the eyebrows of federal and state lawmakers.
The policy solution in Oklahoma’s Senate Bill 383 is leading the pack of countless states that have proposed and are considering legislation that would allow citizens a private cause of action in court if they feel they have been de-platformed without due process. Many other states are following suit with similar legislation, such as Missouri’s House Bill 482 and New Hampshire House Bill 133. Legislation such as this would state that if Big Tech censors an individual for political or religious speech, then said individual would have the ability to file suit if he or she did not violate any terms of the user agreement.
Oklahoma’s bill addresses censorship or silencing that is based on a user’s religious or political free speech as well as political or religious expression censored by algorithms used by big tech with keywords used as flags to de-platform individuals. Consequently, the bill lists that a social media website may not be found liable if the individual did not adhere to commonsense Good Samaritan guidelines, such as calling for immediate acts of violence, using obscenities, or posting content pornographic in nature.
Most interestingly, in a civil action brought under SB 383, a social media website user could be awarded $75,000 if the plaintiff was found to be censored for their political or religious speech. This figure is paramount when it comes to subject matter jurisdiction. Residents of Oklahoma as well as residents of most states considering this legislation do not live in the state in which these tech giants are headquartered. This would mean any civil action under this type of legislation is a diversity of citizenship case. Federal district courts have subject matter jurisdiction if the plaintiff asks for at least $75,000 in damages.
The legislation states that a social media website that, “Restores from deletion or reverses the censorship of a social media website user’s speech in a reasonable amount of time may use such fact to mitigate any damages.” This clause encapsulates the statement that legislation such as this is truly intended to fix a corruption in the market when it comes to free speech and political expression on the various social media platforms. These entities are insulated from liability because they claim to be a mere platform, not editors.
However, by censoring content and removing certain opinions or viewpoints these companies are operating in an editorial capacity. This circumstance should, de facto, remove their protection from liability and make them susceptible to suits such as those permitted under Senate Bill 383.
Moreover, Senate Bill 383 should spur a state-based and national debate on the role of Big Tech censorship in our civic discourse. Allowing a private cause of action in courts is perhaps the tool policymakers need to assure Oklahomans that the message is clear: robust public debate is sacrosanct and any action or failure to act to ensure a vigorous debate will be met with hard questions, and if necessary, enabling policies.
Legislators in the Sooner State should consider solutions that would protect all Americans from undue censorship by a cabal of Big Tech ideologues who wield monopolistic power over the dissemination of information in today’s social media-dominated environment. More speech, not less speech, is always better in a free society.
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