On Question of Regulating Social Media, Sb 50 Is Not the Answer
| Citation | Vol. 92 No. 3 Pg. 32 |
| Publication year | 2023 |
| Pages | 32 |
On Question of Regulating Social Media, SB 50 Is Not the Answer
By Max Kautsch, Kautsch Law LLC
Opinions and positions expressed herein are those of the author(s) and not necessarily those of the Kansas Bar Association, the Kansas Bar Journal, or its Board of Editors. The material is presented as information for attorneys to use and consider, in conjunction with other research they deem necessary, in the exercise of their independent judgment.
The Legislature's current attempt to regulate social media companies, Senate Bill 50,[1] recognizes that existing state and federal law struggles to reign in these cultural and economic giants.[2] But the bill, which received a hearing and was amended before making its way to the Senate Judiciary Committee for possible consideration next year, is an unprecedented infringement on private actors' First Amendment rights.
Ironically, the goal of SB 50, dubbed the Social Media Anti-Censorship Bill by its co-sponsor, Sen. Mark Steffen (R-Hutchinson), is to protect the First Amendment rights of Kansans.[3] Despite these intentions, the bill's enforcement provisions, when read together with its attempt to immunize certain content moderation decisions and not others, are unconstitutionally vague. Moreover, the bill is fundamentally flawed because the First Amendment protects against government censorship, not the business decisions of private companies. Finally, and perhaps most crucially, the bill is unconstitutional because it amounts to a content-based, and therefore presumptively invalid, restriction of the social media companies it seeks to regulate.
These infirmities render it vulnerable to the same type of litigation plaguing similar legislation in Florida and Texas,[4]discussed infra, if SB 50 were to become law. Its passage would set a dangerously authoritarian precedent potentially allowing the Legislature to threaten the ability of any private company to make business decisions when those decisions involve the company's exercise of First Amendment rights.[5]
The Thrust of SB 50
After a substantially similar bill died during the 2021 session,[6]SB 50 is the Legislature's renewed "response to frustration among federal and state lawmakers of the banning and removal of certain users or posts on websites like Twitter, Facebook, YouTube, Instagram, and others."[7]
Such concerns were reiterated at length during a hearing on Feb. 1, 2023, before the Senate Committee on Federal and State Affairs. Chaired by Sen. Mike Thompson (R-Shawnee), another of the co-sponsors of SB 50, the committee heard and reviewed extensive testimony from members of the public convinced that social media websites like Facebook violate the First Amendment rights of Kansans.
"I have been kicked off Facebook several times. For mentioning masks, vaccines, scientific information that they called misinformation," one proponent wrote. "They have one message and if you deviate you are canceled."[8]
Another testified that, "I have experienced this censorship on Facebook numerous times in regards to medical information during the covid pandemic. .. This has got to stop. This is a total infringement on the right to free speech, and to listen to other opinions. This is what democracy is all about."[9]
Sen. Steffen testified that the bill is intended to push back against the blanket immunity afforded to social media companies under the "Protection for "˜Good Samaritan' blocking and screening of offensive material" provision of the federal law commonly known as Section 230.[10] Thereunder, social media companies are immune from liability for "any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected."[11] According to Steffen, the bill is necessary because social media companies are "moderating content whimsically. Beyond what was the intent of Section 230."[12]
Those who testified in favor of SB 50 and other proponents must be pleased with the bill. It authorizes Kansas law enforcement agencies, including the attorney general, to bring misdemeanor charges against any company offering "interactive computer services" (i.e., a social media company) if that company's terms of service "include[] any provisions that authorizes" it "to restrict, censor or suppress information, including political information and political expression."[13]The terms "political information" and "political expression" are undefined. The bill calls for a fine of $10,000 for every violation.[14]
Enforcement would be triggered, presumably, by a social media user filing a report alleging that a social media company has removed or otherwise moderated a user's post of politically motivated content —or perhaps even deleted, or "de-platformed," the user's account entirely —most likely for violating that company's community standards.
Void for Vagueness
Unlike Section 230, which confers broad immunity to social media companies, thereby encouraging them to exercise their First Amendment rights to make content moderation decisions, SB 50 effectively presumes criminal liability unless a social media company's decisions qualify for a limited range of exceptions.
Although these exceptions were intended to "artfully navigate" Section 230 and "protect[] the social media's [sic] First Amendment rights,"[15] their inclusion renders SB 50 void for vagueness. The distinction the bill draws between the broad categories of expression the bill prohibits and the narrow categories of expression it protects are indefinite to the point that "ordinary people" are unable to "understand what conduct is prohibited" and because it "encourage[s] arbitrary and discriminatory enforcement."[16]
The first of SB 50's exceptions purports to permit social media companies to moderate content that "pertains to obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable subject matter."[17] The bill tends to define "obscene, lewd, lascivious, [and] filthy" in terms similar to those recognized by the Supreme Court in obscenity cases,[18] including requirements that the content "[a]ppeals to the prurient interest" or that it contains "patently offensive representations of sexual acts" that, "taken as a whole, lacks serious literary, educational, artistic, political or scientific value."[19] As a result, these words require interpretation and relate to a notoriously confounding concept, i.e., what sorts of sexual expression may be censored.[20]
Moreover, SB 50 conditions a social media company's immunity for removing or otherwise moderating a user's post on whether "the average person applying contemporary community standards would find"[21] that the post is the objectionable type that SB 50 says may be censored. The company would be immune for removing a user's post as "obscene," "lascivious" or "filthy" only if the company were to define those words the same as would a Kansas prosecutor and an average person applying community standards. In other words, liability can be predicated on a difference of opinion, which sets the stage for arbitrary enforcement.
More worrisome, the bill loosely endeavors to equate "excessively violent, harassing or otherwise objectionable subject matter" to how the U.S. Supreme Court defines obscenity, as if the voluminous precedent underpinning obscenity were directly applicable. SB 50 provides:
Information pertains to excessively violent, harassing or otherwise objectionable subject matter if the average person applying contemporary community standards would find that the information: (A) (i) Represents or depicts the extreme use of physical violence with the intention to hurt, maim or kill a person or animal; or (ii) is of a persistent harassing nature directed toward a specific individual or group of individuals identified by race, religion, sex, color, disability, nationality or ethnicity and (B) taken as a whole, lacks serious literary, educational, artistic, political or scientific value.[22]
Again, SB 50 tasks community members with determining the "literary, educational, artistic, political, or scientific value" of a social media post, this time to determine whether it is "violent, harassing, or otherwise objectionable." Although courts have adopted a similar framework to address the very narrow and delicate notion of obscenity, such a framework is not ordinarily applied more broadly to define when expression is "violent, harassing, or otherwise objectionable." In fact, the U.S. Supreme Court has treated depictions of violence as a protected form of expression and has rejected government efforts "to shoehorn speech about violence into obscenity."[23] The Legislature has no legal basis for doing so in this instance.
Moreover, as with the purported "obscenity" exception, determinations regarding "literary, educational, artistic, political, or scientific value" of purportedly "excessively violent, harassing or otherwise objectionable subject matter" would, inevitably, vary throughout the state, forcing a social media company to tailor its platform on a community-by community basis to have a chance at immunity. Such an onerous requirement would have a severely chilling effect that could be tantamount to such a company ceasing operations in the state entirely.
Next, SB 50 also contains a second category of immunity: when the company "limit[s] content on a social media website to certain subject matters as explicitly provided in such service's terms of service."[24] It appears that this provision is intended to differentiate between community standards like Facebook's that the Legislature...
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