MINOT, N.D. — Our national headlines are now filled with news that the tech industry — including giants such as Amazon, Facebook and Twitter — has it out for disgraced President Donald Trump and his supporters.
Hundreds of thousands of users, including Trump himself, have been banned from the platforms. Groups promoting pro-Trump rhetoric, often including conspiracy theories and calls to violence, have been blocked. Hosting companies are taking down pro-Trump sites. Retail service companies are refusing to sell Trump products.
Even an entire social media platform — Parler, a Twitter-like service which became popular with the Trump crowd with promises of unfettered speech — has been taken down.
This has all happened in the context of last week's violent insurrection at the U.S. Capitol building inspired by Trump and his followers, and a long-standing debate over broad immunities against liability granted to the tech industry for content posted by users. The so-called Section 230 protections have become a target for politicians, mostly Republicans, who feel social media platforms have been something less than ideologically even-handed in their approach to regulating political speech.
This brings us to HB 1144, a bill before the Legislature in Bismarck this session that would make "interactive computer services" — defined as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server" — civilly liable.
Not for libelous or otherwise illegal content posted by users, mind you, but for censorship.
"If an interactive computer service provider restricts, censors, or suppresses information that does not pertain to obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable subject matter, the interactive computer service provider is 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," the bill reads.
It has some exceptions.
It would not apply to companies with immunity under federal law (which means everyone currently covered by Section 230). Companies currently considered publishers — newspaper websites, for instance — would also be exempt, as would websites like blogs and Internet forums with fewer than a million users.
I find it deeply problematic that a few elites at the helm of behemoth tech companies, who essentially own the modern public square, are deciding for the rest of us what sort of content we may post and read online. Their actions are every bit as troubling as the disgusting violence perpetrated by Trump supporters last week.
That said, Kading's bill is a waste of time.
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The platforms he's targeting are, for the most part, privately owned. As legions of self-important Internet know-it-alls will pop up to tell you, as if they're the first person ever to make the argument, the First Amendment is a prohibition on government censorship. Not censorship perpetrated by private companies. You do not have a constitutional right to post on Facebook, just as you don't necessarily have a right to give a political speech to the customers at your local Starbucks.
The courts would almost certainly strike down Kading's bill as an overreach.
These services are interstate commerce, too. The U.S. Constitution gives Congress, not the states, the authority to regulate that sort of thing.
But even setting those problems aside and stipulating to the idea that Kading's bill could become law and be upheld by the courts, how would the companies targeted respond?
Probably by ceasing operation in North Dakota.
I am deeply fearful of a future where a few people such as Mark Zuckerberg, Jeff Bezos and Jack Dorsey have a sort of hegemony over American speech. It's also unfair that traditional media companies such as Forum Communications Company, the one I work for, are liable for the content they publish while companies like Facebook and Twitter are not.
It's a problem in need of a fix.
Kading, though, hasn't come up with a good solution. In fact, a state-level solution for this problem is probably impossible given the nature of the companies involved.
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Rob Port, founder of SayAnythingBlog.com, is a Forum Communications commentator. Reach him on Twitter at @robport or via email at firstname.lastname@example.org.