That precedent, however, has some problems, according to those who testified against the bill. The fairness doctrine — which required broadcast license holders to fairly present both sides of controversial issues of public importance — was repealed in 1987, and the Red Lion case itself pertains only to broadcast cases, not to internet providers. Numerous legal experts — including those who testified Friday morning — have also argued bills like SF 100 could actually represent government overreach on private business.
In his testimony, Carl Szabo — a member of the right-leaning American Legislative Exchange Council — spoke forcibly against the bill, calling it an example of overreaching government interference in private business decisions. His own organization has written four separate resolutions in opposition of similar legislation, he said, and while he is concerned about the prospect of free speech on the internet, SF 100 is not the mechanism to slake those worries.
Recently, he noted, the right wing content creator Prager U (whom Hamburger has contributed to in the past) brought a lawsuit against YouTube on similar grounds, only for the court to rule that its parent company, Google, was operating as a private company and not a public forum. Policing the decisions of a private company, Szabo said, would be tantamount to violating the free speech of those businesses, and could actually tie their hands in moderating the spread of truly dangerous content, like recruiting videos for terrorist organizations or other active calls for violence.
Like-minded bills at the federal level have run into similar problems. In 2019, Sen. Josh Hawley’s (R-Missouri) “Ending Support for Internet Censorship Act” was panned by advocates on the grounds it could actually incentivize greater censorship, while groups like the libertarian-leaning Cato Institute have avoided prescriptive legislative efforts in favor of more hands-off approaches to accountability.
“There are a litany of other First Amendment problems with this bill and other constitutional problems. But more importantly is what is at the heart of this bill, what it is and what it will cause,” Szabo said. “What it is, is government intervention with private contractors. And as a conservative, a member of ALEC and an active Republican … that I take issue with. This is basically the government telling private businesses what type of content they can and cannot decide is best for their users.”
SF 100 also attracted attention from high-profile national groups like the advocacy organization TechNet and the influential Internet Association, all of whom spoke out against the bill as improperly infringing on the rights of businesses.