The following article was originally published in the Ohio Capital Journal and published on News5Cleveland.com under a content-sharing agreement.
Ohio House Republicans are trying to ban so-called “big tech censorship” within state lines. The move comes as a response to social media platforms like Twitter and Facebook suspending or removing the accounts of prominent conservatives who violate their terms of service. Tuesday, opponents of the measure got a chance to speak before the House Civil Justice committee.
Rep. Al Cutrona, R-Canfield, first announced the idea last August, as a series of bullet-pointed policy positions. But his proposal saw some significant revisions in the drafting process. Most notable, is the legislation’s enforcement mechanism. Initially, Cutrona envisioned users filing complaints with the attorney general’s office which would be responsible for bringing civil actions. But the legislation he filed with Rep. Scott Wiggam, R-Wayne County, HB 441, takes a page out of Texas’s abortion playbook instead.
Similar to the Texas bill, HB 441 bars government officials from enforcing its provisions, in favor of giving individuals the right to sue. This reliance on private parties rather than public officials is meant to circumvent potential lawsuits that would keep the law from taking effect.
Steve DelBianco heads up a tech industry trade association called NetChoice, and he warned that approach won’t protect the bill in the long run. DelBianco explained his organization has already successfully challenged similar measures in Florida and Texas.
“That will make it harder to get an injunction as NetChoice did in Florida in Texas. But in my humble opinion, I think that was a change that was too clever by half,” DelBianco said, “because private lawsuits will run into the very same constitutional problems as the state did before in Texas.”
DelBianco stressed his conservative credentials before the committee, noting he went out canvassing for Nixon in 1972 and Reagan in 1984. He also noted that conservative voices tend to do better than liberal ones on many social networks when it comes to metrics like rankings, followers and sharing. He allowed there are anecdotal examples of conservatives getting sidelined over posts that violate a business’s terms, but at the same time, those examples undermine the idea that conservatives are being silenced.
“Those anecdotes, while not statistically significant, are elevated very quickly,” he said. “They’re elevated in the media, they’re elevated by the speakers because they seek to try to call attention to it.”
Rep. D.J. Swearingen, R-Huron, argued there must be some way to distinguish between viewpoint and content, and then prohibiting operators from censoring the former. DelBianco insisted the courts don’t see a distinction — the viewpoint is expressed through the content. Perhaps lawmakers could label social media companies common carriers, Rep. Bill Seitz, R-Cincinnati, suggested, and regulate their terms through the Public Utilities Commission. DelBianco assured him judges in Florida and Texas already rejected that idea.
“In both cases, both rulings, the judges looked at the common carrier question suggesting that it doesn’t matter. First Amendment still protects them from state action,” DelBianco said. “Therefore, the Florida and Texas law is unconstitutional.”
Proponents contend social media platforms have become the de facto public square, regardless of the fact they’re private companies. In testimony introducing the measure last November, Wiggam argued their measure was simply “extending First Amendment rights to the 21st century.”
“Social media sites may be private companies, but they serve as publicly accessible conduits for speech,” Wiggam argued.
ACLU lobbyist Gary Daniels conceded the premise that, yes, social media platforms have taken the place of the town square in modern life, and that it is concerning when people — regardless of political affiliation — see their speech there stifled. But he was quick to note it’s not just conservatives who face this issue, and he argued HB 441’s prescription is worse than the disease. Forcing companies to host speech in the name of protecting the First Amendment, he explained, is itself a violation of the First Amendment.
“Just like the First Amendment overwhelmingly prohibits the government from restricting or banning our speech,” Daniels said, “it also overwhelmingly prevents government requirements or demands that we deliver or accommodate others’ speech and messages.”
He also notes that federal law, through Section 230 of the Communications Decency Act, explicitly grants immunity from civil lawsuits to platforms that restrict content they deem inappropriate, “whether or not such material is constitutionally protected.”
DelBianco brought up Section 230 as well in trying to warn lawmakers away from passing HB 441. Donald Trump’s social network Truth Social is set to launch any day, giving conservatives another space to share their views. But CEO Devin Nunes has already promised a “family friendly” network, DelBianco said, which will rely on 230’s content moderation protections.
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