HB 5973 Threatens Social Media Startups & Violates the First Amendment

Jennifer Huddleston, Policy Counsel

1401 K St NW, Ste 502

Washington, DC 20005

netchoice.org

Michigan HB 5973: Opposition Testimony

HB 5973 Threatens Social Media Startups & Violates the First Amendment

May 18, 2022

Dear Chair Hoitenga & Members of the Michigan House Communications and Technology Committee:

We respectfully oppose HB 5973 because it:

Undermines emerging competition in the marketplace and disadvantages new start up social media businesses including platforms focused on specific communities such as conservative viewpoints or the LGBTQ community; and
Violates the First Amendment as multiple federal courts have held regarding similar state laws.

1. HB 5973 Undercuts Competition & Disadvantages Newcomers including platforms aimed at conservative content

As Republican former Senator and presidential candidate Rick Santorum wrote this February in Newsmax, proposals like are the wrong response when it comes to the online speech concerns voiced by many conservatives:

“Gone are the days when a handful of newspapers or networks denied access to conservatives of the only broad based media available, conservative messages now reach billions of people across multiple social media platforms.

In fact, conservatives dominate the top ranks of Facebook, Twitter, and YouTube. As of this writing, Breitbart, Ben Shapiro, Steven Crowder and Franklin Graham are among the top performing link posts on Facebook. Even though these platforms make content moderation decisions that anger many conservatives, social media remains the most effective tool conservatives have ever had.

Conservative social media platforms are also growing increasingly fast, with big increases at Parler, Gettr, and Rumble.

…

But there is a growing threat that TRUTH Social and other conservative-leaning platforms could be ravaged by lawsuits from the left. New laws like those enacted last year in Florida and Texas would authorize lawsuits by users whose posts were restricted because of the “viewpoint” expressed, such as if the left shared false and negative news and views about Donald Trump and his supporters.

^[1]These new laws would also make it difficult to take down content that violates a platform’s community standards, including the use of protected speech such as profanity, disinformation, hateful statements, and nudity…

While many conservatives are angry over how Donald Trump and some high-profile conservatives are treated on Facebook, Twitter, and YouTube, legislation like we’ve seen in Florida and Texas are exactly the wrong response. Those laws would be turned into weapons that progressives use against President Trump and his followers on new, conservative social media platforms.”

Of course such concerns are not limited to “conservative” platforms, platforms seeking to serve specific religious groups or minority voices such as the LGBTQ community might too face difficulty in preserving the type of content moderation standards that make users best able to connect with another and serve the needs of their intended content. The proposal limits the ability to remove content directed at a group on the basis of “race, color, disability, religion, national origin or ancestry, age, sex, or status as a peace officer or judge” only to incidents where it includes “incites criminal activity or consists of specific threats of violence.” This would mean that a platform would be unable to remove Islamphobic without penalty despite the impact it may have on individuals in the Michigan community unless it mentioned a highly specific threat. Such a narrow exception also does not cover many elements of “lawful but awful” speech such as holocaust denial or anti-semitism, homophobic content, or debates over gender issues. The lines regarding debate over controversial issues may vary depending on the type of community a platform seeks to serve, but this proposals would prevent individual platforms from determining the appropriate way in which to address these concerns.

This is just the tip of the iceberg of the unintended consequences a law like HB 5973 would have. The narrow exception does not cover much of the content First Amendment protects a lot including: extremist recruitment, foreign propaganda, and even bullying and other forms of verbal abuse. Today, online platforms make significant efforts to remove harmful content from their sites and have an incentive from their audience and advertisers to continue to improve those efforts.. In just six months, Facebook, Google, and Twitter took action on over 5 billion accounts and posts.^[2] This includes removal of 57 million instances of pornography, and 17 million pieces of content related to child safety.

For example under HB 5973:

YouTube would be unable to prevent children from accessing user-posted videos with violent, hateful, or racist content that is inappropriate for children — even in homes where parents activate Restricted Mode specifically to protect their children.
Spreaders of medical disinformation to sue social media platforms for censoring their “viewpoint” about harmful “cures”
Al Jazeera and RussiaToday to sue social media platforms for restricting posts celebrating terrorist acts or spreading foreign propaganda.
Respond to SPAM messages or posts online.

2. HB 5973 Violates the First Amendment of the U.S. Constitution.

To understand the likely unconstitutionality of HB 5973, it’s worth briefly surveying First Amendment case law applicable to social media businesses. Despite its relative novelty, the cases below make clear social media, like other private business, has the First Amendment’s expansive protections against government.

As a Texas federal court stated when granting a preliminary injunction in NetChoice v. Paxton (pp. 12-17):

More than twenty years ago, the Supreme Court recognized that “content on the Internet is as diverse as human thought,” allowing almost any person to “become a town crier with a voice that resonates farther than it could from any soapbox.” Reno v. Am. C.L. Union, 521 U.S. 844, 870 (1997). The Reno Court concluded that its “cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.” Id. Disseminating information is “speech within the meaning of the First Amendment.” Sorrell v. IMS Health Inc., 564 U.S. 552, 570 (2011) (“[I]f the acts of ‘disclosing’ and ‘publishing’ information do not constitute speech, it is hard to imagine what does fall within that category, as distinct from the category of expressive conduct.”)).

Social media platforms have a First Amendment right to moderate content disseminated on their platforms. See Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1932 (2019).

The Supreme Court’s holdings in Tornillo, Hurley, and PG&E, stand for the general proposition that private companies that use editorial judgment to choose whether to publish content—and, if they do publish content, use editorial judgment to choose what they want to publish—cannot be compelled by the government to publish other content.

Similarly a Florida federal court found in NetChoice v. Moody:

“These three cases [Hurley, Pacific Gas, & Tornillo] establish that a private party that creates or uses its editorial judgment to select content for publication cannot be required by the government to also publish other content in the same manner—in each of these instances, content with which the party disagreed. […]

Even so, the activities of social media platforms that are the focus of the statutes now at issue are not the

routine posting of material without incident or the routine exclusion without incident of plainly unacceptable

content. These statutes are concerned instead primarily with the ideologically sensitive cases. Those are the

very cases on which the platforms are most likely to exercise editorial judgment. Indeed, the targets of the

statutes at issue are the editorial judgments themselves. The State’s announced purpose of balancing the

discussion—reining in the ideology of the large social-media providers—is precisely the kind of state action

held unconstitutional in Tornillo, Hurley, and PG&E.”

With those legal principles in mind, we can turn next toHB 5973’s specific constitutional problems as compared to the state laws passed by Florida and Texas that have already been enjoined due to their significant constitutional concerns.

Reason 1: HB 5973 Arbitrarily Targets Politically Disfavored Platforms for Special Burdens

Texas: HB 20

Michigan: HB 5973

“The State defines social media platforms as any website or app (1) with more than 50 million active users in the United States in a calendar month, (2) that is open to the public, (3) allows users to create an account, and (4) enables users to communicate with each other “for the primary purpose of posting information, comments, messages, or images.”

“HB 20 excludes certain companies like Internet service providers, email providers, and sites and apps that “consist[] primarily of news, sports, entertainment, or other information or content that is not user generated but is preselected by the provider” and user comments are “incidental to” the content.”

“Sec. 5. A social media platform that meets both of the

following requirements is a common carrier as at common law and shall not unjustly or unlawfully discriminate against expression on its internet website or platform:

(a) Has more than 50,000,000 active users in the United Statesin a calendar month.

(b) Has 1 or more of the following:

(i) A user described in section 11(1).

(ii) Expression described in section 11(2).”

“Social media platform” means an internet website or

application that is open to the public, allows a user to create an account, and enables users to communicate with other users for the primary purpose of posting information, comments, messages, or

images. Social media platform does not include any of the following:

(i) An internet service provider. As used in this subparagraph, “internet service provider” means a person providing connectivity to the internet or another wide area network.

(ii) Email.

(iii) An online service, application, or website if both of the following requirements are met:

(A) The online service, application, or website consists

primarily of news, sports, entertainment, or other information or content that is not user generated but is preselected by the provider.

(B) Any chat, comments, or interactive functionality for the online service, application, or website is incidental to, directly related to, or dependent upon the provision of the content described in sub-subparagraph (A).

Analysis: While it’s common for legislatures to draw distinctions between businesses based on their size (e.g., exempting small businesses from onerous labor regulations), it’s far more questionable when legislation is seemingly written to burden a particular subset of businesses in one particular industry.

Here, HB 5973’s contains many more exceptions to more specifically target those politically disfavored social media platforms while attempting to exempt ISPs, chat services, and newspapers.

This seems uncomfortably similar to the “Disney Exemption” in the Florida case.

Legal Reasons: “HB 20 applies only to social media platforms of a certain size: platforms with 50 million monthly active users in the United States. HB 20 excludes social media platforms such as Parler and sports and news websites. During the regular legislative session, a state senator unsuccessfully proposed lowering the threshold to 25 million monthly users in an effort to include sites like “Parler and Gab, which are popular among conservatives.”

““[D]iscrimination between speakers is often a tell for content discrimination.” NetChoice, 2021 WL 2690876, at *10. The discrimination between speakers has special significance in the context of media because “[r]egulations that discriminate among media, or among different speakers within a single medium, often present serious First Amendment concerns.” Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 659 (1994). The record in this case confirms that the Legislature intended to target large social media platforms perceived as being biased against conservative views and the State’s disagreement with the social media platforms’ editorial discretion over their platforms. The evidence thus suggests that the State discriminated between social media platforms (or speakers) for reasons that do not stand up to scrutiny.”

[N.B. the court in Florida reached the same conclusion based on that state’s law.]

Reason 2: HB 5973’s Premised Entirely on Social Media Businesses Being “Common Carriers”—But They’re Not & Can’t Be Declared To Be

Texas: HB 20	Michigan: HB 5973
“Social media platforms and interactive computer services with the largest number of users are common carriers by virtue of their market dominance.”	“A social media platform that meets both of the following requirements is a common carrier as at common law and shall not unjustly or unlawfully discriminate against expression on its internet website or platform”
Analysis: The doctrine of “common carriage” comes from the British common law and boils down to this: when transportation or distribution companies *hold themselves out to the public as operating on a nondiscriminatory basis, it’s proper to hold them to that promise. Put another way, businesses that promise to move people or things from Point A to Point B on a nondiscriminatory basis (meaning, it doesn’t matter who the person is or what the thing is), they should be held to that. This is especially true when scarce resources are at stake—we don’t necessarily want 13 railroads crisscrossing a state so it makes sense to require the few that do operate to do so in a nondiscriminatory manner. Tempting though it may be to see Big Tech that way, it just can’t work. First, tech businesses have never held themselves out as carrying all* speech without question*. Indeed, most, if not all of us, want content moderation in some form to insure that the internet platforms we use are not overrun by pornography, graphic violence, and harrassing content. From the beginning these businesses have had content-moderation policies and limitations on use such as age requirement or other specifics. In this way, these platforms are more like a traditional media company (e.g., Fox News doesn’t have to host Rachel Maddow if it doesn’t want to nor does the New York Times have to run every letter to the editor submitted) than it does a railroad. Furthermore even if they were common carriers, they still have First Amendment rights and this bill would still be unconstitutional. This is discussed in the PG & E case mentioned in part 1 of this section. [N.B.* Note that HB 5973 exempts ISPs whereas Texas includes them.]
Legal Reasons: “The parties dispute whether social media platforms are more akin to newspapers that engage in substantial editorial discretion—and therefore are entitled to a higher level of protection for their speech—or a common carrier that acts as a passive conduit for content posted by users—and therefore are entitled to a lower level of protection, if any. […] This Court is convinced that social media platforms, or at least those covered by HB 20, curate both users and content to convey a message about the type of community the platform seeks to foster and, as such, exercise editorial discretion over their platform’s content. Indeed, the text of HB 20 itself points to social media platforms doing more than transmitting communication. In Section 2, HB 20 recognizes that social media platforms “(1) curate[] and target[] content to users, (2) place[] and promote[] content, services, and products, including its own content, services, and products, (3) moderate[] content, and (4) use[] search, ranking, or other algorithms or procedures that determine results on the platform.” “HB 20’s pronouncement that social media platforms are common carriers does not impact this Court’s legal analysis.” “[T]his Court has found that the covered social media platforms are not common carriers. Even if they were, the State provides no convincing support for recognizing a governmental interest in the free and unobstructed use of common carriers’ information conduits.”

Reason 3: HB 5973 Discriminates on the Basis of Content and Viewpoint and Can’t Survive “Strict Scrutiny”

Texas: HB 20

Michigan HB 5973

HB 20 prohibits large social media platforms from “censor[ing]” a user based on the user’s “viewpoint.” Specifically, Section 7 makes it unlawful for a “social media platform” to “censor a user, a user’s expression, or a user’s ability to receive the expression of another person based on:

● (1) the viewpoint of the user or another person;

● (2) the viewpoint represented in the user’s expression; or

● (3) a user’s geographic location in this state or any part of this state.”

“Subject to section 11, a common carrier shall not

censor a user, a user’s expression, or a user’s ability to receive the expression of another person based on any of the following:

(a) The viewpoint of the user or another person.

(b) The viewpoint represented in the user’s expression or another person’s expression.

(2) This section applies regardless of whether the viewpoint is expressed on a social media platform or through any other medium.”

Analysis: When laws are based on the content or viewpoint of private speech, they must pass “strict scrutiny”—the highest standard of judicial review. The wording of HB 5973 is nearly identical to the Texas law that was found not to meet this burden. Content-based laws are those that draw distinctions between types of content.

Before discussing the legal reasoning, I’ll just point out the obvious: HB 5973 explicitly uses the term “viewpoint” but explicitly spells out certain categories of speech that platforms may moderate.

Legal Reasons: “HB 20’s prohibitions on “censorship” and constraints on how social media platforms disseminate content violate the First Amendment. The platforms have policies against content that express a viewpoint and disallowing them from applying their policies requires platforms to “alter the expressive content of their [message].” Hurley, 515 U.S. at 572–73. HB 20’s restrictions on actions that “de-boost” and “deny equal access or visibility to or otherwise discriminate against expression” impede platforms’ ability to place “post[s] in the proper feeds.” Social media platforms “must determine how and where users see those different viewpoints, and some posts will necessarily have places of prominence.”

HB 20 compels social media platforms to significantly alter and distort their products. Moreover, “the targets of the statutes at issue are the editorial judgments themselves” and the “announced purpose of balancing the discussion—reining in the ideology of the large social-media providers—is precisely the kind of state action held unconstitutional in Tornillo, Hurley, and PG&E.” Id. HB 20 also impermissibly burdens social media platforms’ own speech. Id. at *9 (“[T]he statutes compel the platforms to change their own speech in other respects, including, for example, by dictating how the platforms may arrange speech on their sites.”).

Reason 4: HB 5973 Triggers the Judicially Created Strict Scrutiny Test—And Flunks It

Texas: HB 20	Michigan: HB 5973
“this state has a fundamental interest in protecting the free exchange of ideas and information in this state”	“The legislature finds that subsection (1) is necessary for the public good and the general welfare of the people of this state.”
Analysis: As alluded to earlier, HB 5973 triggers strict scrutiny because of its viewpoint-based requirements.Strict Scrutiny requires the government to prove its law is (1) narrowly tailored to achieve (2) a compelling government interest. Additionally, current Supreme Court precedent seems to now require that even when necessary the state use “least restrictive means” to achieve its goal. Common carrier requirements and limits on private actor’s speech decisions are not the “least restrictive means.” Put bluntly, this proposal seems to argue the way to stop violations of the First Amendment is to stop violating the First Amendment.
Legal Reasons: “The State offers two interests served by HB 20: (1) the “free and unobstructed use of public forums and of the information conduits provided by common carriers” and (2) “providing individual citizens effective protection against discriminatory practices, including discriminatory practices by common carriers.” The State’s first interest fails on several accounts. First, social media platforms are privately owned platforms, not public forums. Second, this Court has found that the covered social media platforms are not common carriers. Even if they were, the State provides no convincing support for recognizing a governmental interest in the free and unobstructed use of common carriers’ information conduits.5 Third, the Supreme Court rejected an identical government interest in Tornillo. In Tornillo, Florida argued that “government has an obligation to ensure that a wide variety of views reach the public.” Tornillo, 418 U.S. at 247–48. After detailing the “problems related to government-enforced access,” the Court held that the state could not commandeer private companies to facilitate that access, even in the name of reducing the “abuses of bias and manipulative reportage [that] are . . . said to be the result of the vast accumulations of unreviewable power in the modern media empires.” Id. at 250, 254. The State’s second interest—preventing “discrimination” by social media platforms—has been rejected by the Supreme Court. Even given a state’s general interest in anti-discrimination laws, “forbidding acts of discrimination” is “a decidedly fatal objective” for the First Amendment’s “free speech commands.” Hurley, 515 U.S. at 578–79. Even if the State’s purported interests were compelling and significant, HB 20 is not narrowly tailored. Sections 2 and 7 contain broad provisions with far-reaching, serious consequences. When reviewing the similar statute passed in Florida, the Northern District of Florida found that that statute was not narrowly tailored “like prior First Amendment restrictions.” NetChoice, 2021 WL 2690876, at 11 (citing Reno, 521 U.S. at 882; Sable Comm’n of Cal., Inc. v. FCC, 492 U.S. 115, 131 (1989)). Rather, the court colorfully described it as “an instance of burning the house to roast a pig.” Id. This Court could not do better in describing HB 20.”* “The Florida court concluded that: Balancing the exchange of ideas among private speakers is not a legitimate governmental interest. And even aside from the actual motivation for this legislation, it is plainly content-based and subject to strict scrutiny. It is also subject to strict scrutiny because it discriminates on its face among otherwise-identical speakers: between social-media providers that do or do not meet the legislation’s size requirements and are or are not under common ownership with a theme park. The legislation does not survive strict scrutiny. Parts also are expressly preempted by federal law.” From Florida: “First, leveling the playing field—promoting speech on one side of an issue or restricting speech on the other—is not a legitimate state interest. See, e.g., Arizona Free Enter. Club v. Bennett, 564 U.S. 721, 749-50 (2011).”

Conclusion: HB 5973 violates the values of limited government and free markets

In 1987, President Ronald Reagan repealed the infamous Kennedy-era “Fairness Doctrine,” which required equal treatment of political views by broadcasters, saying:

“This type of content-based regulation by the federal government is … antagonistic to the freedom of expression guaranteed by the First Amendment. In any other medium besides broadcasting, such federal policing … would be unthinkable.”^[3]

Today, we face similarly unthinkable restrictions in proposals such as HB 5973, when state governments seek to punish private platforms for moderating their services in ways that they see fit for their customer base and advertisers.

But we as citizens are the ones who will ultimately bear the concerning consequences of such proposals as they negatively impact both existing and emerging opportunities for speech and connection. The opportunities for speech have never been stronger. No longer limited to a handful of newspapers or networks, where those in power can decide if alternative viewpoints or marginalized voices can speak. Now the average individual can reach billions of people across multiple social media platforms, including not only Facebook, Twitter, and YouTube, but newer and more specific platforms such as Rumble, Gettr, or former President Donald Trump’s own Truth Social. Social networks have allowed users to easily find and connect with communities of shared interest.

Nevertheless, some on both the right and the left are proposing the government regulate social networks’ efforts to remove objectionable content but often for completely dichotomous reasons. The reality remains that online content moderation often entails many decisions that are far from black or white and that government intervention could not only violate these free market principles but make the underlying situation far more difficult.

NetChoice supports limited government, free markets, and adherence to the United States Constitution, so we respectfully ask that you oppose HB 5973.

Sincerely,

Jennifer Huddleston

Policy Counsel

NetChoice is a trade association that works to make the internet safe for free enterprise and free expression.

^[1] As of the 2020 Census, the city of Dearborn, Michigan was home to the largest per-capita Muslim community.

^[2] Transparency Report, at http://netchoice.org/wp-content/uploads/Transparency-Report.pdf

^[3] Veto of Fairness in Broadcasting Act of 1987, 133 Cong. Rec. 16989 (June 23, 1987), http://www.presidency.ucsb.edu/ws/?pid=34456 .