Half-Baked Bills Target Tech Giants

By Corey Friedman

May 1, 2021 5 min read

Fuming at Facebook for deleting your post? Having a temper tantrum over a Twitter takedown? You could sue for cold, hard cash if Chris Sevier has his way.

The Tennessee conservative legal activist with a flair for publicity stunts — as a means of protesting same-sex marriage, he sued the state of Alabama for refusing to recognize his "marriage" to his laptop computer — is behind legislation introduced in a handful of states that seeks to regulate comment moderation.

Lawmakers in North Carolina, Kentucky, Missouri, Texas, Rhode Island, New Hampshire, West Virginia, Louisiana and Hawaii are considering identically titled Stop Social Media Censorship Acts that include similar language and rely on a convoluted premise envisioning contract law as an end-run around the First Amendment.

North Carolina's version, Senate Bill 497, would create a private right of action to sue social media companies with 75 million or more users for "deleting or censoring the user's religious speech or political speech" or "using an algorithm to disfavor, shadowban, or censure the user's religious speech or political speech."

Censorship occurs when government silences or punishes a speaker. As private companies, Facebook, Twitter and other social networks have the right to decide which speech they'll allow on their websites. Paradoxically, the "anti-censorship" bills seek to censor tech giants by requiring them to host specific kinds of content under threat of civil penalty.

That constitutes compelled speech in violation of the First Amendment. Sevier thinks he's found a loophole, but his half-baked legal theory doesn't pass the smell test.

S.B. 497 states that civil liability would deter "deceptive trade practices," "false advertising," "breach of contract," "bad faith," "unfair dealing" and "fraudulent inducement." By removing content that expresses religious and political views, Sevier says, companies are guilty of a bait-and-switch scheme.

"Social media websites have set out (to) and successfully created a modern-day digital public square, but they've done that through fraud by marketing themselves, in a way, being free, fair and open to all ideas, only to then turn around after the fact and say, 'We're not,'" Sevier explained in a phone interview.

Sevier couldn't provide any examples of advertising or promotional materials suggesting Facebook and Twitter users can say whatever they wish.

Social media companies don't promise neutrality on matters of politics and religion. To the contrary, they reserve the right to moderate user content, and moderation standards are spelled out in websites' terms of service.

Sevier isn't arguing that moderation is inconsistent or that the companies don't follow their own rules. Instead, he insists that terms of service don't constitute a valid contract.

"It's all about — this is really complex law stuff — does that contract fall into what's called a contract of adhesion?" he said. "The answer is yeah, because of the amount of people that signed up."

Adhesion contracts are offered on a take-it-or-leave-it basis without an opportunity for negotiation. Website terms of service fall into that category, as do cellphone and credit card service contracts, apartment leases and many forms of boilerplate legalese that most consumers accept after little more than a cursory skim. But that doesn't mean they're automatically invalid.

In fact, courts have upheld end-user license agreements — those painfully long dialogue boxes where users must click "accept" when installing new software — as enforceable contracts.

Sevier may be sincere in his belief that Facebook and Twitter have sold users a false bill of goods, but he couldn't offer evidence to substantiate the claim. And intricate though it may be, contract law offers no mechanism for courts or government agencies to punish websites for content moderation.

Techdirt editor Mike Masnick explained that state lawmakers are tilting at windmills in their roundup of various social media "censorship" bills.

"Most of them are performative nonsense that no state legislature will actually pass," Masnick wrote. "But if they do, just recognize that any legislature that does so is throwing away taxpayer money on a series of expensive lawsuits that will inevitably end with the law being tossed out as unconstitutional."

The First Amendment prevents government officials from muzzling our speech. But none of us has the legal right to amplify our voice using Facebook's megaphone.

Corey Friedman is an opinion journalist who explores solutions to political conflicts from an independent perspective. Follow him on Twitter @coreywrites. To find out more about Corey Friedman and read features by other Creators writers and cartoonists, visit the Creators webpage at www.creators.com.

Photo credit: Pixelkult at Pixabay

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