Republican state lawmakers in North Dakota want Facebook and Twitter to face lawsuits from users who have been “censored.”
A bill submitted by the six legislators last week is titled, “an Act to permit civil actions against social media sites for censoring speech.” It says that social media websites with over 1 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.”
Even if passed by the North Dakota legislature, the bill would likely have no effect due to a conflict with 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 wrote in a Twitter thread about the bill.
Section 230 is a US law enacted in 1996 that says providers and users of interactive computer services shall 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.
“Lead bill sponsor Rep. Tom Kading said, ‘It’s just wrong to ban a sitting president,’ but he noted his proposal is meant to provide a legal tool only for those who live in North Dakota,” the Grand Forks Herald wrote yesterday.
Curiously, the North Dakota bill text says it would apply only in cases when the company “is immune from civil liability under federal law.” That seems to mean that the proposed North Dakota law would no longer apply if Section 230 is repealed by the federal government—but the proposed law likely can’t be enforced while Section 230 is in place, either.
“There’s no question that this would target conduct immune under federal law—and, in fact, if [Section] 230 were repealed nobody could ever be liable under this law (since it only reaches immune conduct),” Cohen wrote. In other words, the North Dakota bill is “incredibly stupid,” he wrote.
Even if the North Dakota bill can be implemented, determining exactly when a provider could be sued for damages would difficult. Despite attempting to make providers liable for “censorship,” the bill text says providers can block posts that are “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable subject matter.” Blocking anything that doesn’t fit into those categories would be considered “censorship” under this proposal, but standards like “excessively violent” and “otherwise objectionable” are vague.
“We’ll protect you”
“There’s a pretty obvious First Amendment problem with the government saying ‘we’ll protect you from being sued if you ban content we want you to ban, but not different substantive content we like,'” Cohen wrote. “That’s the definition of a law regulating speech that turns on the substance of the speech in question, so there can’t be any government standard for defining ‘otherwise objectionable.'”
Additionally, the bill provision allowing lawsuits from people who didn’t get to see blocked content is “an unfathomably bad idea,” Cohen wrote. “If Twitter banned me, all 19K of my followers would have the ability to separately sue Twitter for damages for being deprived of my pearls of wisdom and gif game?”
Beyond this particular bill, Cohen argued that “legislating around [Section] 230 at the state level is doomed.”