Legislature(2021 - 2022)BUTROVICH 205
03/17/2022 03:30 PM Senate STATE AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| HB187 | |
| SB207 | |
| SB214 | |
| HB123 | |
| SB129 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| *+ | HB 187 | TELECONFERENCED | |
| *+ | SB 207 | TELECONFERENCED | |
| *+ | SB 214 | TELECONFERENCED | |
| += | HB 123 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| + | SB 129 | TELECONFERENCED | |
SB 214-LIABILITY: SOCIAL MEDIA CENSORSHIP
4:22:01 PM
CHAIR SHOWER announced the consideration of SENATE BILL NO. 214
"An Act relating to civil liability for censorship of speech by
a social media platform."
4:22:22 PM
SENATOR REINBOLD, speaking as sponsor, stated that SB 214
addresses social media censorship, which is a new area of law.
She offered her perspective that many social media platforms are
extraordinarily political yet they are not regulated as such.
Furthermore, some politicians have been targeted on these
platforms for their views on such things as the COVID-19
vaccine. She continued the introduction speaking to the sponsor
statement that read as follow:
[Original punctuation provided.]
SB 214 may also be known as the Stop Social Media
Censorship Act. This bill ensures that the legislature
is opposed to censorship of online content, has a
compelling interest in holding certain social media
platforms to higher standards for having established a
digital public square, and has an interest in helping
its residents regardless of religious or political
affiliations enjoy their free exercise of rights in
certain semipublic forum commonly used for religious
or political speech, and has an interest, and has an
interest in preventing social media platforms that
have substantially created a digital public square
from malicious interference in state elections.
Social media platforms may not intentionally fact
check, delete, or use an algorithm to disfavor, shadow
ban or otherwise censor the religious or political
speech of a platform user. SB 214 includes civil
liability for censorship of speech by a social media
platform.
4:25:08 PM
SENATOR REINBOLD summarized the February 17, 2022 legal
memorandum she received from Legal Services regarding work order
32-LS1577\A. It read as follows:
The bill draft you requested is attached. Please
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.
2. Damages. Your request provided an injured party
with a minimum of $75,000 in statutory damages, actual
damages, punitive damages, and other forms of equitable
relief. The draft bill uses the $75,000 statutory
damages but does not include punitive damages to
conform to the structure of AS 09.68. Please advise if
this is not what you intended.
SENATOR REINBOLD highlighted that she wanted the foregoing
addressed under AS 45.45 relating to trade practices, not AS
09.68
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.
4. Deceptive trade practice. Your request placed the
prohibitions in AS 45.45, a chapter addressing trade
practices. Because the draft regulates conduct of
platforms and generally prohibits harassing behavior,
and because the draft is imposing liability for
conduct, I placed your request in AS 09.
5. Personal bill deadline. In order to deliver a
draft before the personal bill deadline, we have
expedited preparation of this bill draft. Please be
aware that there may be additional legal issues raised
by this draft that are not discussed in this memo.
4:27:18 PM
SENATOR KAWASAKI requested a copy of the memo.
CHAIR SHOWER replied it would be added to the record.
4:27:28 PM
SENATOR REINBOLD presented the sectional analysis for SB 214.
Section 1 adds the short title, Stop Social Media Censorship
Act, to the uncodified law of the State of Alaska
Section 2 amends the uncodified law of the State of Alaska by
adding legislative findings.
The legislature finds that the state
(1) is opposed to censorship of online content,
unless the content is harmful to minors or promotes
human trafficking;
(2) has a compelling interest in holding certain
social media platforms to higher standards for having
substantially created a digital public square;
(3) has an interest in helping its residents,
regardless of religious or political affiliation,
enjoy their free exercise of rights in certain
semipublic forums commonly used for religious and
political speech; and
(4) has an interest in preventing social media
platforms that have substantially created a digital
public square from malicious interference in state
elections.
Section 3 amends AS 09.68 by adding a new section regarding
civil liability for censorship of speech by a social media
platform.
(a) prohibits censoring political speech of a platform user
(b) authorizes civil action for violations
(c) allows the platform to mitigate damages by restoring the
platform user's speech
(d) prohibits a court from using the alleged hate speech as
justification for a platform to delete or censor the user's
religious or political speech
(e) allows the attorney general to bring civil action against a
social media platform on behalf of the user
(f) outlines that deletion or censorship of a user's speech does
not apply when the speech
(1) calls for acts of violence.
(2) calls for self-harm
(3) is pornographic
(4) results from operational error
(5) results from a court order
(6) is inauthentic or involves impersonation
(7) entices criminal conduct
(8) harms minors
(9) bullies minors
(g) prohibits bullying or harassing behavior on a social media
platform
(h) provides definitions for
(1) algorithm
(2) hate speech
(3) platform user
(4) political speech
(5) pornographic
(6) religious
(7) shadow ban and
(8) social media platform
4:31:36 PM
CHAIR SHOWER noted that the fiscal note for SB 214 is zero.
4:32:00 PM
SENATOR HOLLAND asked where the definition of "religious" came
from and whether the protections are limited to
a set of unproven 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
He observed that if he were to post about his religious
exemption, he didn't believe it would fall under that definition
and his speech could be censored. He suggested that "relating to
or manifesting faithful devotion to an acknowledged ultimate
reality or deity" would be a more appropriate and all-
encompassing definition of religious.
SENATOR REINBOLD agreed and said she would support amending the
definition. She suggested that Noah Klein, who drafted the bill,
tell the committee where the definition in the bill came from.
4:33:36 PM
NOAH KLEIN, Legislative Counsel, Legal Services, Division of
Legal and Research Services, Legislative Affairs Agency, Alaska
State Legislature, Juneau, Alaska, stated that Legal Services
drafts bills according to intent and the direction they receive
from the bill sponsor. As such, he could answer questions about
what the definition means or how it would be applied, but the
bill was drafted according to the direction given.
SENATOR HOLLAND stated that he might offer an amendment.
SENATOR COSTELLO referenced Section 3 and wondered whether all
speech could be protected, not just religious or political
speech. She suggested amending the language on page 2 line 7 to
read, "...or otherwise censor speech of a platform user based on
religious or political speech, race, sex, age, or identity
choice."
She said she appreciates the bill because she believes that free
speech should be protected and that people should not be treated
improperly because of their views.
4:35:39 PM
SENATOR REINBOLD maintained that she did not give Legal Services
a specific definition for religious and she much prefers the one
Senator Holland suggested. She also agreed with Senator
Costello's point, further maintaining that she did put
parameters in to target religion and politics.
4:37:19 PM
CHAIR SHOWER turned to invited testimony on SB 214.
4:37:25 PM
CAMERON SHOLTY, Director of Government Relations, Heartland
Institute, Illinois, testified by invitation in support of SB
214. He thanked the committee for hearing the bill and Senator
Reinbold for introducing it. He stated that Heartland Institute
is a 38-year-old independent, national, nonprofit organization
whose mission is to discover, develop, and promote free-market
solutions to social and economic problems. Heartland focuses on
providing national, state, and local elected officials with
reliable and timely research and analysis on important policy
issues.
MR. SHOLTY stated that 97 percent of social media traffic flows
through just three firms, thereby making this the de facto
public square where political and religious issues are shared
and debated. He acknowledged that some of the debate becomes
ugly but pointed out that it is still lawful and should be
protected. He said free speech rights are not subject to
corporate capture, although there are numerous examples where
conservative speech in particular has been subject to the whims
of big tech. He cited the example of Facebook stating that a New
York Times article about an ongoing investigation into Hunter
Biden was eligible to be fact-checked by third-party partners
and that in the meantime distribution on the platform would be
reduced. He maintained that the sole issue there is that
government and big tech collude to limit speech in the de facto
public square.
MR. SHOLTY offered his view that there were competing interests
in the Commerce Clause and the First Amendment. Regarding the
Commerce Clause, he said Section 230 of the 1996 Communication
Decency Act allows states like Alaska to weigh in the way SB 214
does to forbid objectionable content. And then there are the
First Amendment claims big tech corporations have used to
prevent third-party content. He stressed that Section 230
requires a very narrow reading and "otherwise objectionable"
should not be the whim of Silicon Valley.
4:42:14 PM
SENATOR COSTELLO asked if he would recommend addressing this
issue in uncodified law or where the sponsor believes is
appropriate under [AS 45.45] relating to trade practices.
MR. SHOLTY replied this is an issue of consumer protection and
the findings tend to lean into the concept of commerce and
carriage, so it may be best in uncodified law. That being said,
he suggested discussing the question with legislative counsel.
CHAIR SHOWER thanked Mr. Sholty and said the committee may ask
him to return for a subsequent hearing.
4:45:34 PM
CHAIR SHOWER opened public testimony on SB 214; finding none, he
closed public testimony.
He asked Senator Reinbold if she had any closing comments.
SENATOR REINBOLD urged the members to look at the written
testimony from the Heartland Institute and expressed her desire
to invite Mr. Sholty to return if the committee was sufficiently
interested.
4:46:29 PM
CHAIR SHOWER held SB 214 in committee.