Bill filed to "stop social media censorship" | Arkansas Blog

Thursday, December 6, 2018

Bill filed to "stop social media censorship"

Posted By on Thu, Dec 6, 2018 at 2:44 PM

Johnny Rye
  • Johnny Rye

Rep. Johnny Rye
(R-Trumann) filed a bill this morning that would allow civil legal action against social media companies that "delete or censor" content posted by users.

The bill would allow plaintiffs to seek damages of a minimum of $75,000 "per purposeful deletion or censoring of the social media website user's speech" plus actual damages and punitive damages if aggravating factors are present. Only social media companies with at least 75 million subscribers would be subject to Rye's bill.

Imagine, just for the sake of argument, that a Conway preacher named Jason posted inflammatory comments about Muslims on a social media website. Let's say the social media website removed that post. Under Rye's law, if our hypothetical Jason was the litigious sort, he could sue the social media company and seek damages. If he had multiple posts, that would be $75,000 a pop; plus pain and suffering if he was the sensitive sort.

I've put in a call to Rye and haven't heard back. There are a number of confusing aspects to his bill. For one thing, you might wonder whether private companies can choose what content to publish or not publish on their platforms. Rye's bill waves this little concern away: "A social media website is considered a public utility under this section" — and therefore subject to "subject to special governmental regulation." This is an interesting idea that appears to have been pulled from a leftist antitruster, but I think it's fair to say that it would be ripe for a legal challenge from private entities. Rye doesn't seem like a seize the means of production kind of guy, but here we are.

Despite this one-off interest in turning private companies into public utilities subject to government regulation, Rye clearly seems to be inspired by claims of bias against conservative viewpoints by social media companies.

His bill leads off with the following definition of "hate speech":
a phrase concerning content that an individual arbitrarily finds offensive based on his or her personal moral code
This isn't a definition of "hate speech" but an assertion that there is no such thing. Some social media companies have attempted to develop policies to remove, say, Nazi propaganda from being posted on their sites. Certain critics have argued that such policies are biased against conservatives. "Hate" is in the eye of the beholder; start sweeping out the Nazis and you might end up censoring legitimate conservative discourse. Rye's bill codifies special protections for "political speech" or "religious speech" on social media, which cannot be censored even if someone's "personal moral code" finds it hateful.

At the big social media companies, it's usually not a human being making these decisions. Rye's bill also holds the social media companies responsible for the opaque decisions of its robot minders: They are subject to legal action if they "use an algorithm to suppress political speech or religious speech." Note: That's written broadly enough to apply to algorithms that favor or amplify some posts over others. Some conservatives have complained that their posts are shown less frequently in the feed of platforms like Twitter. Presumably, if an algorithm tended to put a certain kind of post at the bottom of a feed, or didn't display it as often, that could leave the company liable under Rye's law.

Another curious feature of the bill: It would establish a private cause of action to sue in Arkansas Civil Court, but legal action by our hypothetical Jason could only be taken against an "owner or operator of a social media website who resides in this state." Honestly, I wonder if that's a drafting error; unless I'm missing something,  I'm not sure there's a single owner/operator of a social media company with 75 million subscribers who resides in the state.

However, the bill does include a mechanism for the attorney general to sue speech-suppressing behemoths in Silicon Valley:
The Attorney General may bring a civil cause of action under this section on behalf of social media website users who reside in this state whose religious speech or political speech has been censored by a social media website. 
In other words, Leslie Rutledge could sue Twitter or Facebook in state court on behalf of Jason, or any other Arkansans who felt that they had wrongly been censored by a social media company they signed up to use (did I mention this bill would be ripe for a legal challenge?). Under the bill, if the attorney general brings such a civil action, the plaintiffs must reside in Arkansas, but the lawsuit could be brought against social media operators outside of the state.

Certain categories of material would not be subject to Rye's bill: Social media companies would not be liable for censoring or disfavoring "speech that calls for immediate acts of violence, is obscene, or is pornographic in nature." Meanwhile, a company that has "been specifically affiliated with any one religion or political party from its inception" would be immune from Rye's bill.

Rye's bill comes in the same week that Sen. Jason Rapert vociferously complained about being temporarily barred from sending tweets by Twitter. A tweet that Rapert sent out regarding Muslims was found by the company to violate its "hateful conduct policy." The company imposed a timeout that lasted at least 12 hours, according to a printout of Twitter's communication that Rapert held up to the camera in a Facebook Live post. The offending tweet has apparently been removed. Rapert said that he is appealing the decision. "Friends, I'm not certain for how long we are going to be able to communicate across these mediums," Rapert said in his video response to the kerfuffle. "Twitter, I hope your government affairs people are watching this. We are going to hold hearings on your activities."

Rapert disputed that he had done anything hateful at all.

Rye's bill states: "A social media website may not use the social media website user's alleged hate speech as a basis for justification or defense to the social media website's actions at trial."

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