Bad news for Big Tech: State bill would let you sue social media giants for political censorship

State Rep. Tom Kading (R-ND) has drafted a bill that would put social media giants like Twitter and Facebook in legal hot water for restricting political posts in North Dakota. It could set precedent in other states.

Kading has previously expressed his anger over the recent Facebook and Twitter suspensions of President Trump, stating: “It’s just wrong to ban a sitting president.”

“I drafted it in December and things have only gotten worse,” Kading, the lead sponsor of the bill, told “Fox & Friends” on Saturday.

“I’m frankly shocked at what’s happening to our country and censoring does not create unity, it does not help the situation of division in our country, and it does not de-escalate the situation,” Kading said. “All it really does is make those who have been silenced dig in deeper and be more suspicious of what’s going on.”

(Source: Fox News)

The bill puts forth that social media sites would be liable in a civil lawsuit for damages to a North Dakota resident “whose speech is restricted, censored, or suppressed,” as long as it is not “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”

“If a website comes out and selectively publishes information,” Kading stated, citing case law from state supreme courts, “or manipulates true information in order to create a certain desired narrative, this restrictive action can essentially amount to defamation.”

Many Republicans and Americans, in general, have questioned whether social media platforms should still be afforded liability protections under Section 230 of the Communications Decency Act. That 1996 rule shields social media companies from being held liable for third-party posts on their platforms while allowing them to moderate that content.

Kading believes his bill is in compliance with Section 230, adding: “If Big Tech doesn’t follow their terms of service and they are banning one particular political party … and they censor outside the scope of Section 230, then there’s this civil liability.”

Ars Technica is reporting that the bill submitted by six legislators titled “an Act to permit civil actions against social media sites for censoring speech,” states that 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.”

Compensation for censored users would include “treble damages for compensatory, consequential, and incidental damages.” Experts believe the bill would likely have no effect even if it was passed due to a conflict with federal law. Attorney Akiva Cohen wrote in a Twitter thread that 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.”

“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.

Cohen argued that “legislating around [Section] 230 at the state level is doomed.”

Free speech experts argue the bill would be challenged in the courts, where it probably wouldn’t survive because users agree to a platform’s terms when they sign up to participate.

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