Legislature(2021 - 2022)BUTROVICH 205
03/22/2022 03:30 PM Senate STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| SB142 | |
| SB207 | |
| SB214 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| += | SB 142 | TELECONFERENCED | |
| += | SB 129 | TELECONFERENCED | |
| += | SB 207 | TELECONFERENCED | |
| += | SB 214 | TELECONFERENCED | |
| += | SJR 20 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
SB 214-LIABILITY: SOCIAL MEDIA CENSORSHIP
3:57:38 PM
CHAIR COSTELLO announced the consideration of SENATE BILL NO.
214 "An Act relating to civil liability for censorship of speech
by a social media platform."
He noted that Senator Holland had an amendment for the committee
to consider. He asked the sponsor for a high level summary of
the bill.
3:58:02 PM
SENATOR LORA REINBOLD, speaking as sponsor, stated that SB 214
is an anti-censorship bill that targets the large social media
platforms. The bill imposes penalties for shadow banning or
otherwise restricting users within certain parameters. She read
the following paragraph from written testimony submitted by the
Hartland Institute:
As partisans squabble and media apparatchiks chirp,
the social media companies have ascended from mere
stages where players perform to being the protagonists
and villains rolled into one driving force of the
storyline. The result has been near universal
frustration with the behavior of what has become
colloquially known as Big Tech.
She offered her belief that the people need to act to prevent
being censored for posting their opinions on these social media
platforms. She noted that this is a new and evolving area of
law.
3:59:30 PM
SENATOR KAWASAKI asked her to comment on the case in Texas in
which a federal judge blocked a law similar to SB 214, stating
that "Social media platforms have a First Amendment right to
moderate content disseminated on their platforms." The judge
further found that the Texas law "compelled social media
platforms to disseminate objectionable content that
impermissibly restricts their editorial discretion."
4:00:14 PM
SENATOR REINBOLD replied she cannot address all cases, but she
had provided the committee with the Legislative Legal Services'
memo. She summarized the following from that legal memo that
suggested the sponsor consider the following:
1. First Amendment issues. Please be aware that the
draft bill raises significant issues under the United
States Constitution's First Amendment and art. I, sec.
5, of the Alaska Constitution. Because social media
websites are private entities and not government
actors, they are entitled to freedom of speech
protections. Government regulation of a social media
website's speech is therefore held to the same standard
as government regulation of a private individual's
speech.
The draft bill seeks to compel speech and suppress
fact-checking. The U.S. Supreme Court has stated that
"[t]here is certainly some difference between compelled
speech and compelled silence, but in the context of
protected speech, the difference is without
constitutional significance, for the First Amendment
guarantees 'freedom of speech,' a term necessarily
comprising the decision of both what to say and what
not to say. "l The interplay of free speech protections
and internet forums such as social media is an evolving
area of law. Because the draft bill requires a social
media website to disseminate content with which it
disagrees, and prohibits a website from speaking
through fact checking, a court may, however, find the
provisions in the bill unconstitutional.
SENATOR REINBOLD noted that the second consideration was about
damages. She paraphrased the third suggested consideration about
jurisdiction. It read as follows:
3 Jurisdiction. Although the draft bill provides an
individual with a cause of action against a social
media website, it is not clear that an Alaska court
would have personal jurisdiction over the social media
website. As a result, an Alaska court may dismiss a case
brought under this statute for lack of personal
jurisdiction.
SENATOR REINBOLD said the fourth consideration discusses her
preference to place the bill in AS 45.45 and that the drafter
placed it in AS 09 because it regulates conduct, prohibits
harassing behavior, and imposes liability for the conduct. She
decided not to object to the placement but said she continues to
believe there is an argument either way in this emerging area of
law.
4:02:13 PM
CHAIR SHOWER asked if the Texas ruling was under appeal in the
Fifth Circuit [Court of Appeals].
SENATOR KAWASAKI clarified that it was a district court case.
CHAIR SHOWER asked if the court discussed whether or not large
social media companies would be regulated by the FCC in the same
way as newspapers.
SENATOR KAWASAKI replied he only knew that the Texas law was
struck down on First Amendment grounds. He acknowledged that he
didn't know the background.
CHAIR SHOWER asked him to forward that information for the
record because it goes to the sponsor's statement that there are
two sides to the matter.
4:03:22 PM
SENATOR KAWASAKI read the last sentence in the Legislative Legal
Services' memo regarding First Amendment issues in the bill and
opined that it aligns with what the district court judge said
about the Texas law.
Because the draft bill requires a social media website
to disseminate content with which it disagrees, and
prohibits a website from speaking through fact
checking, a court may, however, find the provisions in
the bill unconstitutional.
He acknowledged that his concerns about First Amendment rights
would be more appropriately considered in the Judiciary
Committee.
4:04:15 PM
SENATOR REINBOLD said she had several other cases to add to the
record in this or the next committee of referral if Senator
Kawasaki intended to add the Texas district court case. She
stressed the importance of SB 214, stating the following:
That the platforms that are making beaucoup bucks on
us, want to restrict us and want to shut us down
without penalty because they want to hide behind some
other source of law. But yet when we try to ban or
block somebody that we disagree with, that we think is
false information, you know, then they want to have
these people come after us.
So we're damned if you do and we're damned if you
don't. And that's why this is so doggone important. We
have to allow the platform users to have some power
here and we can't let the big tech just have a
stranglehold on all sides. It's just not fair.
CHAIR SHOWER said he'd appreciate receiving all the data and it
would be forwarded to the Judiciary Committee.
4:05:21 PM
SENATOR COSTELLO requested his office post all the court cases
it receives to BASIS.
CHAIR SHOWER agreed to do so.
4:05:41 PM
SENATOR KAWASAKI asked the sponsor if her last statement was
specifically about the case relating to public officials
removing or blocking critics [from Facebook], because public
officials are held to a higher standard than the general public.
SENATOR REINBOLD replied it depends. The Legislative Legal
Services memo states that media websites are private entities
and as such are entitled to freedom of speech protections. The
bottom line is that these are private platforms and we are
users. She said she is in charge of her Facebook page but she
doesn't see it as official communication. That is different for
the executive branch. She said they're held to a completely
different standard because they can enact things on their own,
whereas the legislature has to enact something as a body.
SENATOR REINBOLD stated that she was aware of five cases that
make the distinction between executive branch postings on
official sites and individual legislator postings on their
private sites.
CHAIR SHOWER asked Noah Kline if he had any thoughts about the
court cases that were mentioned.
4:08:11 PM
NOAH KLINE, Legislative Counsel, Legal Services, Division of
Legal and Research Services, Alaska State Legislature, Juneau,
Alaska, said he was aware of the district court case in Texas
that Senator Kawasaki described as well as a district court case
in Florida in the last year. In both cases the federal district
courts enjoined legislation similar to SB 214 on First Amendment
and potentially other constitutional grounds. Federal preemption
questions were raised in those cases as well.
CHAIR SHOWER asked if either of those cases were moving forward.
MR. KLINE said he believes the cases are on appeal, but he could
not state that for certain. He reiterated that in both cases the
courts found a likelihood of success on a First Amendment
challenge.
CHAIR SHOWER asked if he was aware of anything on antitrust
implications on those cases.
MR. KLINE replied he was not specifically aware of any antitrust
findings.
CHAIR SHOWER asked if he was aware of any arguments in these
cases about bringing large tech social media companies under FCC
regulation as a content manager as opposed to a service
provider.
MR. KLINE said he was not aware of any such cases. He asked the
chair if he was referring to social media companies as editors
as opposed to having no impact on what is posted.
CHAIR SHOWER confirmed that was what he was talking about.
MR. KLINE said both district court cases he referred to earlier
held that social media companies have editorial ability.
4:11:40 PM
CHAIR SHOWER found no further questions and turned to invited
testimony.
4:12:01 PM
SAMANTHA FILLMORE, State Government Relations Manager, Heartland
Institute, Chicago, Illinois, provided invited testimony in
support of SB 214. She stated that in the last year some 35
states have introduced about 80 pieces of legislation
challenging the seemingly unilateral control big tech has had
over free speech in the de facto modern public square. She
offered her perspective that this clearly shows that censorship
by social media platforms is the minds of all legislators and
their constituents.
MS. FILLMORE stated that just three companies control 97 percent
of the traffic on social media platforms, so First Amendment
rights are at the core of the debate. SB 214 seeks to find a way
for these platforms to work in a free and fair way, although
unilateral control over a stage based on algorithms or certain
points of view is not slightly fair and it flies in the face of
what the First Amendment was designed to protect.
MS. FILLMORE said these companies have First Amendment rights
and they claim to be an avenue for free speech, but that is
nothing more than a deceptive trade practice. She said it's time
to stop talking about the inalienable rights of these
multinational companies, because the First Amendment applies
differently to speakers than to those who host or transmit
speech. "In other words, while a government forcing a group or
person to speak a specific message causes First Amendment
concerns, requesting transparency from the terms under which
entities host or transmit other speech is entirely complicit
with the Constitution."
MS. FILLMORE cited the Turner case in Texas where the court
upheld must-carry requirements on cable systems and it premiered
another case that upheld requirements that privately owned
shopping centers allowed free speech on their premises. She said
House Bill 20 in Texas protected Texans against social media's
discriminatory practices regarding political viewpoints, and
that fell within the general rule of how courts have long
treated companies and places of public accommodation. However,
when that law was challenged she believes the court got it wrong
when it relied on an exception to the rule and not what
generally has been followed for decades.
4:15:53 PM
SENATOR KAWASAKI asked if either the Texas or Florida decisions
were under appeal.
MS. FILLMORE answered yes; both were appealed and are going
through that process. She added that Heartland filed an amicus
curiae brief in the Texas case in an effort to maintain the
forward momentum. She expressed hope that Alaska would exert its
autonomy such that something that occurred in Texas or Florida
wouldn't occur in Alaska.
CHAIR SHOWER asked her to comment on the question about
potential FCC regulation of big tech and whether an appeal in
the Texas case would go to the Fifth Circuit.
MS. FILLMORE said she would follow up with an informed answer
about whether or not an appeal in the Texas case would go to the
Fifth Circuit.
CHAIR SHOWER asked if she was aware of any cases concerning
potential FCC regulation of big tech.
MS. FILLMORE explained that Section 230 of the Communications
Decency Act governs the way big tech acts as a platform.
Initially, Section 230 was intended to address publishers such
as newspapers, television, radio and other forms of media. With
the advent of social media, tech companies claimed that a
posting on their platforms was not their own speech because the
platforms were merely bulletin boards. The argument was
successful and the government essentially gifted liability
protections to these tech companies under Section 230.
MS. FILLMORE said the reasoning and the caveat for that gift
from the federal government was that these tech companies were
not editors and could not control what was on their platform.
However, the reality is that these platforms have since entered
into an editorial context. Now many people argue that if big
tech wants to edit content on these platforms, it should forfeit
the gift from the federal government. That debate is taking
place in Congress now.
MS. FILLMORE highlighted that subsection (e)(3) of Section 230
allows for state-based laws. She interpreted the provision as
the federal government's way to allow individual states to
figure out this new method of communicating political free
speech.
4:20:27 PM
CHAIR SHOWER said he was relying on the fact that her
perspective was broader than just the state of Alaska.
4:21:15 PM
CHAIR SHOWER opened public testimony on SB 214; finding none, he
closed public testimony.
CHAIR SHOWER asked Senator Holland to offer his amendment.
4:21:35 PM
SENATOR HOLLAND moved Amendment 1 to SB 214, work order 32-
LS1577\B.1.
32-LS0232\B.1
Klein
3/19/22
AMENDMENT 1
OFFERED IN THE SENATE BY SENATOR HOLLAND
TO: SB 214
Page 3, lines 25-28:
Delete all material and insert:
"(6) "religious" means relating to or
manifesting faithful devotion to an acknowledged
ultimate reality or deity."
CHAIR SHOWER objected for discussion purposes.
SENATOR HOLLAND said the only thing in the bill that he found
problematic was the definition of religious because it referred
to "unproven faith-based assumptions." He read the definition in
the above amendment.
CHAIR SHOWER asked the sponsor to comment.
4:22:30 PM
SENATOR REINBOLD said she was happy with the amendment.
4:22:56 PM
SENATOR KAWASAKI asked the bill sponsor if she worked with
Legislative Legal Services to come up with the definition of
"religious" in the bill or if it was a term of art.
SENATOR REINBOLD answered that she first introduced this
legislation in 2019 and she believes a staff member at the time
provided direction to Legal Services.
CHAIR SHOWER, in response to a query from Senator Reinbold,
advised that he had released Noah Kline for the day, although he
could call him back.
4:23:56 PM
SENATOR KAWASAKI asked Senator Holland whether the definition he
proposed for "religious" appeared elsewhere in statute or if it
was a term of art.
4:24:36 PM
SENATOR HOLLAND said his intention with the amendment was to
provide a definition that 1) defined "religious" without using
the word and 2) seemed appropriate to the service. He offered to
follow up with the source.
4:25:16 PM
SENATOR KAWASAKI read the definition of "religion" that Black's
Law dictionary uses. "A human's relation to divinity, to
reverence, worship, obedience, submission to mandates and
precepts of supernatural or superior beings." He said he would
be more comfortable using a definition in this bill that can be
found somewhere in law, as opposed to the committee trying to
settle on a definition.
SENATOR HOLLAND offered his perspective that striking those four
lines essentially leaves the definition in Webster's.
4:26:14 PM
MR. KLINE advised that he had not heard the question.
CHAIR SHOWER asked Senator Kawasaki to repeat the question.
4:26:28 PM
SENATOR KAWASAKI said his question was about the definition of
"religious" in bill Section 3 on page 3, lines 25-28. He asked
if that definition appears somewhere else in statute or if it's
a new definition specifically for SB 214. He noted there was
also an amendment that offered another definition for
"religious."
4:26:54 PM
MR. KLINE answered that both the definition in the bill and the
definition in the amendment are new definitions that are
specifically limited to the proposed new section of law, Sec.
09.68.055.
SENATOR KAWASAKI asked how the definition come about.
MR. KLINE restated that Legal Services drafts according to the
request it receives, so he would defer to the sponsor of bill or
the sponsor of the amendment. He added that he would need to
review Black's Law Dictionary to see if either of the
definitions were consistent to Black's.
CHAIR SHOWER summarized that Senator Reinbold did not recall
which staff in her office may have offered direction for the
definition because it was in 2019.
4:28:21 PM
SENATOR HOLLAND asked if a standard definition of "religion"
would be applied if the definition of "religious" in paragraph
(6) were eliminated from the bill entirely and no other
definition was added.
MR. KLINE answered that if a court was in the position of trying
to interpret whether or not a specific type of speech was
religious speech, it would look to other historic court
definitions of religious or the common usage of the term. If the
court thought there was ambiguity, the intent of the legislature
in adopting this legislation could also come into play.
SENATOR REINBOLD said she believes that Legal Services provided
the definition in the bill based on her direction to define the
terms "religious" and "political." She offered her perspective
that the definition for "religious" could be improved by
deleting the word "unproven" from page 3, line 25. The
definition would read:
(6) "religious" means a set of faith-based assumptions
or assertions that attempt to answer questions
relating to how the world was created, what
constitutes right and wrong human action, and what
happens to humans after death;
4:30:18 PM
SENATOR HOLLAND advised that the definition in the amendment is
from Merriam Webster. He added that it would also be acceptable
to delete the word "unproven" from the definition in paragraph
(6).
SENATOR COSTELLO asked the sponsor to consider that deleting the
definition entirely and relying on the courts to use the common
definition, as Mr. Kline said would happen, might result in a
broader, more all-encompassing definition.
4:31:38 PM
CHAIR SHOWER pointed out that the sponsor's intent was to
protect both religious speech and political speech so the term
should be mentioned, even if it isn't defined.
4:32:14 PM
SENATOR REINBOLD said her preference was to leave the definition
in paragraph (6), but delete the word "unproven." She believes
it encompasses a vast majority of mainstream religion.
CHAIR SHOWER asked Mr. Kline for the best path to capture all
political speech and religious speech, and how the courts might
look at that.
MR. KLINE said he wasn't able to answer the question because
there was nothing to stop the committee from defining religious
speech much more broadly than it has historically been defined
or defining political speech more broadly than it is currently
defined by the courts.
CHAIR SHOWER asked if there were any more questions for Mr.
Kline.
4:34:18 PM
SENATOR KAWASAKI asked whether the definition for "pornographic"
in paragraph (5)(C) on page 3 came from another area of statute.
It read:
(5) "pornographic" means material that
(C) lacks serious literary, artistic,
political, or scientific merit;
He commented that it seems a little out of place to identify
pornographic material as something that lacks scientific merit.
4:34:59 PM
MR. KLINE said the definition may or may not be substantially
similar to a definition used elsewhere but he would have to look
through the statutes and at case law before he could say whether
or not that is a fact. He restated that his role is to draft
according to request and he can talk about whether there are
legal issues, what the bill does, and what the bill means, but
how a word is defined is not a choice he makes.
4:36:07 PM
CHAIR SHOWER opined that the following might help answer come of
the questions:
Question: Has the Supreme Court defined religion?
Answer: Although it has attempted to create standards
to differentiate religious beliefs and actions from
similar nonreligious beliefs, the Supreme Court has
never articulated a formal definition for religion.
Given the diversity of America's religious experience
since the constitution was created, a single
comprehensive definition has proved elusive.
SENATOR REINBOLD disagreed with Senator Kawasaki's comment that
defining pornographic as "material that lacks scientific merit"
was out of place, because it acknowledges such things as anatomy
in a biology textbook. However, she did wonder why the
definition included "material without political merit."
MR. KLINE responded that Legislative Legal Services drafts
according to intent. He explained the definition is saying that
if material is descriptive of paragraph (5)(A), (B), and (C),
then it is pornographic.
SENATOR REINBOLD expressed satisfaction with the answer.
4:38:48 PM
CHAIR SHOWER said the committee will decide what it wants to do
with the amendment and the bill but his belief is that this
matter will ultimately play out in the courts.
4:39:36 PM
SENATOR HOLLAND withdrew Amendment 1.
4:39:51 PM
SENATOR REINBOLD suggested the committee consider conceptually
amending the definition of "religious" by inserting "may" before
"means" and deleting "unproven" before "faith-based...".
4:40:28 PM
At ease
4:41:03 PM
CHAIR SHOWER reconvened the meeting and asked Senator Reinbold
to offer the conceptual amendment.
4:41:09 PM
SENATOR REINBOLD moved Conceptual Amendment 1 to SB 214.
Page 3, line 25 following: "(6) religious"
Delete "means a set of unproven"
Insert "may mean a set of"
CHAIR SHOWER objected for discussion purposes.
SENATOR HOLLAND said he found the amendment acceptable.
CHAIR SHOWER removed his objection; finding no further
objection, Conceptual Amendment 1 to SB 214 passed.
4:43:05 PM
SENATOR REINBOLD moved to report SB 214, work order 32-LS1577\B
as amended, from committee with individual recommendations and
attached fiscal note(s).
4:43:25 PM
CHAIR SHOWER found no objection and CSSB 214(STA) was reported
from the Senate State Affairs Standing Committee.
| Document Name | Date/Time | Subjects |
|---|---|---|
| B.1 amendment sen .Holland.pdf |
SSTA 3/22/2022 3:30:00 PM |
SB 214 |
| SB 142 FN.pdf |
SSTA 3/22/2022 3:30:00 PM |
SB 142 |
| SJR 20 FN.pdf |
SSTA 3/22/2022 3:30:00 PM |
SJR 20 |
| Legal Memo 2-17-22.pdf |
SJUD 3/28/2022 1:30:00 PM SSTA 3/22/2022 3:30:00 PM |
SB 214 |
| SB214 32-LS1577-B.PDF |
SSTA 3/22/2022 3:30:00 PM |
SB 214 |
| SB 214 Sponsor Statement 2.28.22.pdf |
SSTA 3/22/2022 3:30:00 PM |
SB 214 |
| suport -2.pdf |
SSTA 3/22/2022 3:30:00 PM |
SB 214 |