BISMARCK — A group of Republican lawmakers has introduced a bill that would put social media companies in legal jeopardy for censoring or restricting political posts in North Dakota. However, a First Amendment expert strongly questions whether the proposal is enforceable.
House Bill 1144 would make large social media sites liable in civil lawsuits for damages to any North Dakota resident "whose speech is restricted, censored, or suppressed," so long as it is not "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable."
The proposal comes as conservative politicians and pundits accuse popular sites like Twitter and Facebook of targeting their ilk in an effort to suppress their voices. Both sites banned President Donald Trump last week, saying his posts violated their terms of service by inciting a violent storming of the U.S. Capitol.
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 Fargo Republican said all social media censorship of political material is unfair, but he noted the rationale behind his bill is not related to freedom of speech.
Kading argues that firms like Facebook and Twitter violate the terms of agreement signed by users when they ban or restrict content related to politics. In that way, the bill deals more in contract law than First Amendment law.
Some North Dakotans earn their livelihoods from social media, he added, and unjust restrictions on them do more than muzzle their political perspectives.
Gene Policinski, chief operating officer of the Washington, D.C.-based Freedom Forum Institute, said Kading's bill doesn't hold water because social media users who are censored or banned have willingly agreed to the sites' terms of service that explicitly say users can be booted for certain types of behavior.
For example, Twitter's rules state that the site has "a zero tolerance policy against violent threats," and a tweet may be removed if it "includes a declarative call to action that could harm a specific individual or group."
The company's terms of service that users must sign to use the website also specify that a user's account may be terminated "at any time for any or no reason." Since Twitter and Facebook are private companies, any censorship they do wouldn't amount to a violation of the First Amendment, Policinski said. He added that the bill doesn't define the harm a user might suffer by being censored on a social media website.
"This (bill) is more of a statement than a serious law that the courts would sustain," Policinski concluded.
If the bill becomes law, Kading said, it would certainly be challenged in the courts due to its novelty, and there will likely be a lot of litigation over the next decade to decide how social media firms are regulated.
The Fargo lawmaker said his legislation may not be the way to go about regulating the companies, but he's at least starting a productive discussion about how to hold them accountable.