But critics say the requirements in HB 441 are not reasonable.
Steve DelBianco, president of NetChoice, an organization that advocates for limited government, competition and choice for the Internet and opposes HB 441, said that when people hold political signs at a shopping mall, members of the public understand that their views aren’t necessarily the same as the mall owners’ views.
That’s not the same for social media companies, he said. The public often associates the opinions that people post with the platforms themselves. For instance, businesses have cut advertising from YouTube and Facebook because users have posted content they don’t want to be associated with.
“Put simply, who a platform accepts as a user and what content the platform tolerates from that user reflect on the platform’s public image,” he wrote in a memorandum to lawmakers.
And even if social media platforms becomes classified as common carriers, he said common carriers also have First Amendment rights. For instance, an airline can kick someone off a plane for wearing a T-shirt with words it doesn’t like.
“You don’t lose First Amendment protections just because you’re a common carrier,” he said.
The Ohio bill and similar Texas and Florida bills are supported by a conservative think tank known as the Heartland Institute. NetChoice sued Texas and Florida and got preliminary injunctions blocking the state from enforcing the laws until the courts decide on the cases. However, the injunctions didn’t extend to individuals.
“Both Florida and Texas also created new private lawsuit mechanisms for their citizens, similar to HB 441,” DelBianco said. “But in both Florida and Texas, the strong injunction opinions have apparently dissuaded any private citizens from bringing a lawsuit in either of those states.”
The U.S. Supreme Court has previously ruled that states may protect First Amendment rights above the U.S. Constitution, as long as the state protections don’t conflict with the U.S. Constitution. But in this case, the First Amendment rights of the platforms would be violated, and federal law is supreme, DelBianco said.
The Columbus area is home to several data centers, including one owned by Facebook.
“Ohio rivals Northern Virginia for data centers, so the very same companies that would be subject to lawsuits under this law,” DelBianco said. “I get the politics, or some Republicans wanting this bill, but I wonder if Gov. DeWine would sign it into law when it slaps the very same companies that are investing billions in Ohio’s economy, especially when that law will be held unconstitutional.”