Republican lawmakers in North Dakota want Facebook and Twitter exposed to lawsuits from users who have been "censored".
A bill tabled last week by the six lawmakers is entitled "A bill that allows civil actions against social media sites for censoring language". It is said that social media websites with more than 1 million users "will be held liable in a civil lawsuit for harm to the person whose language is restricted, censored or suppressed, and any person who writes, speaks, or does." Speech would reasonably have received differently. " Publication. "Payouts for" censored "users would include" triple damages for compensatory, consequential and incidental damages ".
Even if the bill were passed by North Dakota lawmakers, it would likely have no effect due to a conflict with federal law. The proposed law "would be deemed void immediately as provided in Section 230 of the Communications Decency Act" because "federal law governs state law if a conflict arises and that would create an express conflict," wrote Attorney Akiva Cohen in a Twitter thread about the bill.
Section 230 is US law enacted in 1996 that provides that providers and users of interactive computer services shall not be liable for "actions taken voluntarily in good faith to restrict access to or availability of material that the provider or user deems obscene indecent, lascivious, filthy, overly violent, harassing or otherwise objectionable, regardless of whether or not such material is constitutionally protected. "
The law thus offers legal protection for companies that moderate user-generated content on the online platforms they operate. The law has been a controversial issue lately, especially among Republicans. President Trump has called for social media companies to be stripped of their legal immunity.
The main sponsor of North Dakota law is Republican Tom Kading, who is furious that Facebook and Twitter banned Trump after instigating the insurgent uprising in the U.S. Capitol.
"Major bill sponsor Rep. Tom Kading said," It is just wrong to ban a seated president, "but noted that his proposal is intended to be a legal tool only for those living in North Dakota," wrote the Grand Forks Herald yesterday.
Oddly enough, North Dakota law states that it would apply only in cases where the company "is immune from civil liability under federal law". This appears to mean that if Section 230 is repealed by the federal government, the proposed North Dakota law would no longer apply – but neither is the proposed law likely to be enforceable while Section 230 is in effect.
"There is no question that this is aimed at behavior that is immune under federal law – and in fact no one could be held liable under that law if (section) 230 were repealed (as it only affects immune behavior)," wrote Cohen. In other words, the North Dakota bill is "incredibly stupid," he wrote.
Even if the North Dakota bill can be implemented, it would be difficult to determine exactly when a vendor could be sued for damages. Despite attempts to make providers liable for "censorship", the text of the law states that providers can block posts that are "obscene, indecent, lascivious, dirty, overly violent, harassing or otherwise objectionable". Blocking items that do not fit into these categories is considered "censorship" for the purposes of this proposal, but standards such as "excessively violent" and "otherwise objectionable" are vague.
"We will protect you."
"There's a pretty obvious First Amendment problem with the government saying," We're protecting you from lawsuit if you ban content that you should ban but not other content that we like, "Cohen wrote. "This is the definition of a law regulating language that activates the content of the speech in question. So there cannot be a government standard for defining "otherwise objectionable". "
In addition, the law that allows lawsuits from those unable to see blocked content is "an unfathomably bad idea," Cohen wrote. "If Twitter banned me, would all 19,000 of my followers have the option to sue Twitter separately for damages for being robbed of my pearls of wisdom and the GIF game?"
Beyond that particular bill, Cohen argued that "legislation at (section) 230 is doomed to fail at the state level".