After a proposal to regulate how social media companies moderate content failed, a Utah legislative leader is pushing forward. He hopes other states will join his effort.
Senate President Stuart Adams, R-Layton, is the newly elected president of the American Legislative Exchange Council, or ALEC, a group of conservative state legislators and private-sector representatives. The organization frequently proposes model legislation for states to adopt, and Adams sees the current fight over social media as a perfect opportunity.
“Both Republicans and Democrats should be concerned about free speech and the ability to have your ideas expressed online,” Adams said. “The private sector controls so much online that it’s really concerning when they get to decide what gets heard and what doesn’t.”
Adams envisions a process wherein several states pass legislation proposed by ALEC to regulate social media. If enough states adopt similar legislation, he says it could force social media companies to come to the negotiating table with states or the federal government.
“This is a national issue,” Adams said. “Hopefully, we can come up with a workable solution.”
Adams’ proposal so far is short on details. That’s a problem, says Chicago-based First Amendment attorney Ari Cohn. Anything he tries to do would be unconstitutional, regardless of how many states support it.
“Attempts to force social media platforms to host speech that they don’t want to,” Cohn said, “are all going to run headfirst into the First Amendment, which gives platforms the right to decide what speech it will allow on their property.”
The First Amendment protects private companies like Twitter and Facebook from the federal government. Free speech protections don’t extend to the users of those platforms, , says Cohn, especially when it comes to content moderation.
The First Amendment prevents the government from putting limits on the freedom of expression by individuals, but it does not prevent a private company from setting its own rules. It also ensures government cannot require individuals or companies to say something if they don’t want to. Individual states cannot pass laws that are in conflict with these constitutionally guaranteed protections because federal law trumps state law.
“Adams should know that attempts to make an end run around the First Amendment aren’t going to resolve that fundamental flaw,” Cohn said. “If he does, then what he really is trying to do is force social media companies to make concessions by threatening them with legislation. But that’s no less offensive to First Amendment principles, and Adams ought to abandon this performative exercise.”
During the 2021 session, lawmakers passed a bill that would have limited the way social media companies decide what they delete. The proposal from Sen. Mike McKell, R-Spanish Fork, came after social media platforms banned former President Donald Trump after the January attack on the U.S. Capitol by a mob of Trump supporters.
McKell’s bill attempted to force companies that control platforms to provide clear guidelines with respect to inappropriate content. Those companies also would’ve been asked to establish a process for users in Utah to appeal any decision to remove posts.
The bill included a way for the state to impose fines on those companies when they violate their own regulations. Gov. Spencer Cox vetoed the bill over “technical issues” but said the bill was a good first attempt to address “the real and novel issues around freedom of speech and the rights of private companies.”
Break up the big guys
From the ashes of McKell’s failed effort, Adams sees an opportunity, which is why he’s pushing forward with his plan.
Already there have been several other moves to rein in big tech.
Missouri Sen. Josh Hawley proposed legislation this week to break up large tech companies like Amazon and Google, which he asserts have an anti-conservative bias. His proposal reforms antitrust laws, making it easier for government to break up companies that have gotten too big. It also bans mergers and acquisitions involving companies with market capitalizations above $100 billion.
Parler, the right-wing-focused social media platform, was shut down in January after Amazon would no longer host the website on its servers. Parler’s leadership refused Amazon’s demands to remove posts from users threatening violence after the 2020 election. Parler returned online in February after it moved to another hosting company. Parler’s app was also booted from Apple’s App Store in January but will return after improvements were made to better moderate hate speech and violent content.
“I’m really happy to see Parler come back,” said Adams, who added he doesn’t have an account on the platform. “If you have competition, that drives the marketplace.”
Adams says he plans to start the conversation about social media and what approach states can take at the ALEC national convention in July.
“It’s really not that unusual,” he said, “for Utah to be leading out on an issue like this.”
