Wisconsin Senator's Social Media Bill Aims To Save The First Amendment By Violating The First Amendment

Legal Issues

from the [headed-to-the-ER-to-get-my-third-degree-stupid-burns-treated] dept

Grandstands and bandwagons: that’s what’s headed to Social Media Town. Professional victims — far too many of them earning public money — have produced a steady stream of stupid legislation targeting social media platforms for supposedly “censoring” the kind of the content they really like: “conservative views.” Convinced by failed-businessman-turned-failed-president Donald Trump (and his herd of Capitol Hill toadies) that social media has it in for anyone but the leftiest leftists, a bunch of legislators have hacked up “anti-censorship” bills that aim to protect free speech by trampling on free speech.

The latest (but surely not the last) legislator to grab his bandstand and board the bandwagon is Wisconsin state Senator Julian Bradley. Bradley seems convinced his low Twitter polling must be due to social media companies keeping him down.

“Big tech is silencing the things I say,” Bradley explained Monday morning. “They are silencing and shadow banning, they’re blocking any information that I am putting out.”

And he has a message for Big Social Media:

“Free expression is one of the most vital components of our democratic republic. We must ensure our citizens can engage in political speech unfiltered and uncensored by Big Tech. It’s time for Facebook and Twitter to consistently and fairly enforce their own rules.”

How does Bradley hope to protect free speech from the censorship private companies can’t actually commit? By violating their free speech rights, of course. From the bill [PDF] Bradley says he’s filing but actually has yet to file [as of July 14th, anyway]:

The bill prohibits a social media platform from using post prioritization (prioritizing certain content ahead of, below, or in a more or less prominent position than others in a newsfeed, feed, view, or search results) on content or material posted by or about a candidate for state or local office or an elected official who holds a state, local, or national office.

The bill also prohibits a social media platform from knowingly censoring, deplatforming (deleting or banning from the social media platform for more than 60 days), or shadow banning (limiting or eliminating the exposure of a user, or content posted by a user, to other users of the social media platform) a candidate for state or local office or an elected official who holds a state, local, or national office.

This compelled speech that favors only certain people is shoved into the bill alongside language that says social media companies must treat everyone equally.

Under the bill, a social media platform must publish the standards it uses for determining how to censor, deplatform, and shadow ban users on the platform. A social media platform must apply censorship, deplatforming, and shadow banning standards in a consistent manner among its users on the platform.

All social media patrons must be treated equally… except for politicians and would-be politicians, who will be statutorily more equal than others. Failure to carry compelled speech or apply rules “consistently” will potentially cost social media companies hundreds of thousands of dollars (if not millions per claim). And “consistency” will be defined literally on a case-by-case basis since the new law would create a private cause of action against qualifying social media platforms.

Bradley doesn’t seem to know or care whether his proposal is constitutional. All he knows is he’s pretty sure it’s ok for the government to compel speech when courts have ruled government officials can’t cut off citizens from interacting with them.

Bradley is quick to point-out that judges have ruled lawmakers and other elected officials cannot block or ban people from commenting on their posts, even if those comments are negative or ugly. The courts have ruled, essentially, that social media is the new public town hall and some online speech is protected.

Bradley is right… at least as far as getting the gist of recent court decisions. But he’s wrong when he clarifies his own position:

Bradley said he is using this same logic to say that social media platforms shouldn’t be able to ban elected officials, no matter the language they use.

Ah. Well then. Good luck using that “same logic” in court. This isn’t junior high debate class, you rube. This is the Constitution. “This same logic” doesn’t apply when there are two very clear and very distinct sets of rules that govern private companies and public servants. Public servants can’t prevent the public from participating in their own governance. Private companies are free to pick and choose whose content they’ll host. And social media services have cut elected officials a lot of slack over the years, keeping accounts alive that would have been shut down much earlier if platforms enforced rules consistently.

Bradley wants to create a carve-out for public officials in both the Constitution and social media platforms’ terms of service. That’s utter bullshit and shouldn’t be tolerated by either his government cohorts or the people he’s supposed to be representing.

Filed Under: 1st amendment, content moderation, julian bradley, section 230, social media, wisconsin