SB 214-LIABILITY: SOCIAL MEDIA CENSORSHIP  1:43:15 PM CHAIR HOLLAND reconvened the meeting and announced the consideration of SENATE BILL NO. 214 "An Act relating to civil liability for censorship of speech by a social media platform." [CSSB 214(STA) was before the committee. 1:43:39 PM SENATOR LORA REINBOLD, Alaska State Legislature, Juneau, Alaska, sponsor of SB 214, paraphrased the sponsor statement. [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. 1:44:15 PM SENATOR REINBOLD stated that many people on social media have been restricted or had misinformation stickers placed on their social media pages. She related that an invited testifier would speak to a court case related to this issue. She indicated she wanted to discourage large social media platforms from adversely impacting social media platform users by censoring them. SENATOR REINBOLD highlighted that this is an emerging area of law that could impact political and religious speech. 1:46:40 PM SENATOR REINBOLD provided a sectional analysis for SB 214. She stated that Section 1 would refer to the Act as the Stop Social Media Censorship Act. [Original punctuation provided.] 1:46:49 PM SENATOR REINBOLD paraphrased Section 2 of SB 214, which read: [Original punctuation provided.] (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. 1:47:44 PM SENATOR REINBOLD stated that Section 3 relates to civil liability for censorship of speech by a social media platform. She paraphrased subsection (a). Except as provided in (g) of this section, the owner or operator of a social media platform 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. 1:48:04 PM SENATOR REINBOLD noted that subsection (b), (c), and (d) establishes liability for a social media platform that violates subsection (a). 1:48:19 PM SENATOR REINBOLD paraphrased subsection (f), which lists exceptions to civil liability for censorship of speech by a social media platform. f) This section does not apply to deletion or censorship of a platform user's speech on a social media platform when that speech (1) calls for immediate acts of violence; (2) calls for a user to engage in self harm; (3) is pornographic; (4) is the result of operational error; (5) is the result of a court order; (6) comes from an inauthentic source or involves impersonation; (7) entices criminal conduct; (8) is harmful to minors; or (9) involves bullying of minors 1:48:42 PM SENATOR REINBOLD paraphrased subsection (g). (g) Notwithstanding (a) - (f) of this section, bullying and harassing behavior are prohibited on social media platforms. A social media platform shall take steps to prevent bullying and harassing behavior and shall provide a platform user who hosts a page a mechanism to establish and enforce rules of decorum to prevent bullying and harassing behavior on the platform user's page. 1:49:07 PM SENATOR REINBOLD stated that subsection (h) provides definitions for algorithm, hate speech, platform user, and social media platform. 1:49:22 PM SENATOR REINBOLD noted that the State Affairs Committee amended the bill to redefine "religious." 1:49:57 PM SENATOR MYERS referred to fact checking in Section 3. He stated that the Alaska Constitution protects the freedom to publish. He expressed concern that prohibiting a social media platform from fact checking would appear to prevent the owners from publishing on their own website. He asked whether that would raise any constitutional issues. SENATOR REINBOLD responded that she interpreted the court case to determine that the "fact checking" was actually "opinion checking," which would essentially be expressing an opinion about an opinion that was posted. 1:51:16 PM SENATOR MYERS responded that the issue wasn't whether the action taken was based on a fact check or an opinion, but if the social media platform owner was allowed to publish on their own site. This bill would prohibit them from doing so. SENATOR REINBOLD asked whether he was referring to a social media platform, such as Facebook, or the user being prohibited from publishing. SENATOR MYERS responded that he was addressing social media platforms, including Facebook. For example, if he were to post something on Facebook and Facebook decided to fact check his posting, the bill would not allow Facebook to publish comments that the platform user's posting was inaccurate or proven wrong. 1:52:06 PM SENATOR REINBOLD disagreed. She offered her view that social media platform owners could post on their site, but the bill would not allow them to post their opinion on a platform user. 1:52:37 PM CHAIR HOLLAND understood the sponsor to say that a social media platform, such as Facebook, could not "opinion check" on the platform user postings but could provide "fact check" information on their web page. 1:53:37 PM JAMES TAYLOR, President, Heartland Institute, Chicago, Illinois, related that the institute is a nonprofit public policy organization focusing primarily on policy issues before state legislatures. He stated that they have been following this bill because many people feel constrained in sharing information on social media with their friends, family, and colleagues. He offered his belief that three corporations control 97 percent of social media traffic in this country. Although he did not have any issue with them competing for market share, he expressed concern that they use their power to stifle people's free speech rights. 1:55:14 PM MR. TAYLOR characterized Facebook as a great platform, so people use it. However, more than 20 million Americans have had their social media posts about COVID-19 blocked, banned, and censored. MR. TAYLOR said Heartland Institute addresses numerous public policy issues, including global warming, school, choice, and health care. He receives feedback from people who attend his lectures, who say that when they post their views on social media, the platform owners block them. They demand action be taken. 1:56:18 PM MR. TAYLOR noted that legislatures throughout the country had recognized the importance of this topic. He recalled that approximately 37 state legislators had introduced legislation on this topic, and several bills have passed. MR. TAYLOR said the founding fathers recognized the importance of protecting free speech. The Declaration of Independence states, "We hold these truths to be self-evident, that we are endowed by our Creator with certain unalienable rights, among them are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men." He said the First Amendment affirms this. MR. TAYLOR related that sometimes government threatens these rights, but some government is necessary to protect unalienable rights, including free speech. He offered his belief that three corporations controlling social media speech are using their power to stifle unalienable free speech rights. He pointed out that social media platforms or "big tech" have gone on record asking the state and federal government to take action. For example, during the Superbowl, Facebook called for new laws and regulations to tell them what lines to draw. He commented that he had quotes that he could share. MR. TAYLOR stated that social media platforms had also published papers that find government has not taken enough action to address antiquated laws. Further, the platform owners explained that because government does not take action, they are forced to restrict some platform user posts. Social media platform owners indicated that if people want things changed, they must go to their legislators or government. MR. TAYLOR offered his view that SB 214 was one of the better bills before legislatures, so the institute contacted the sponsor to testify in support of the bill. 1:58:58 PM SENATOR HOLLAND asked what he specifically liked about the bill. 1:59:16 PM MR. TAYLOR responded that three things stood out to him. First, the bill establishes statutory damages if social media platforms stifle free speech. He noted that some legislatures took the approach that people can file a lawsuit. However, attorney costs can be expensive for individuals, but corporations can absorb those costs. Instead, this bill would provide real consequences for violations. Second, SB 214 would allow for a private cause of action. He said only the attorney general can initiate a lawsuit on a constituent's behalf in some states. He pointed out that an attorney general might decide not to enforce this law due to limited resources. Thus, allowing individual citizens to present their own cases is powerful. Finally, he offered his view that the bill was concise and precise so that individuals could understand it. 2:00:59 PM SENATOR MYERS pointed out that the Alaska Constitution provides the freedom to publish, unlike the First Amendment. For example, suppose Mark Zuckerberg published a fact check under a post, and the bill prohibits it. He offered his view that appears to interfere with his constitutional right to publish. MR. TAYLOR acknowledged that he had not studied the Alaska Constitution, but he surmised that the right to publish is not absolute. A person would not have the right to publish defamatory materials or something saying the theater is on fire, so context is important. He said people communicate on social media platforms similar to when people communicated at the public town square, so Facebook as a platform should respect that. He noted that there were many places and ways that Facebook could publish. Further, when Facebook provides fact checks, it argues that it is a platform, not a publisher and that the media corporation is held to a different standard. He stated that if Facebook were a publisher, it could be held more liable for defamation or slander. He referred to a lawsuit, Stossel v. Facebook, which alleges that when Facebook "fact checks," it is issuing an opinion. 2:04:30 PM SENATOR REINBOLD referred to art. I, sec. 5 of the Alaska Constitution, relating to freedom of speech. She read, "Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right." The stated goal of SB 214 is to protect the users who are publishing by posting on Facebook or some other online social networking service. She reminded members that legislators swear to uphold and defend individual liberties, not corporate rights. Corporations have created social networking platforms to allow users to publish. She expressed concern that some posts on social media are flagged because the opinion posted differs from the fact checker's view. 2:06:24 PM SENATOR KIEHL understood him to say that the social media platform owners can publish in many places and ways. However, the bill would prohibit social media platform owners, such as Facebook, from publishing on their platforms. He asked why Facebook's ability to publish their opinions outside their platform is a sufficient remedy to the government's restriction of their ability to post their opinions on the platform itself. MR. TAYLOR stated a significant distinction exists between posting on a user-oriented social media platform and someone publishing information in a newspaper, blog, or website. Internet technology has changed how people interact. It's moved from meeting in town squares, pubs, bars, and saloons to sharing ideas online via social media. He reiterated that there are small of media corporations. He alleged that these corporations not only fact check but censor, block, and ban posts, which stifles users from sharing their ideas on social media. 2:08:40 PM SENATOR KIEHL pointed out that the for-profit corporations' goal is to make money. He highlighted that people still gather in bars and restaurants to share their opinions. Some small communities only have one bar and restaurant. He asked whether the owner should no longer have the right to tell patrons to take their offensive ideas outside. MR. TAYLOR responded that this bill addresses online social media platforms. The purpose of online social media is to share ideas. He agreed people still fight over the Thanksgiving dinner, meet in bars and have discussions. However, social media has become the primary way people share ideas and information. He agreed that the bartender or owner could tell patrons to stop arguing about political discussions. 2:11:21 PM MR. TAYLOR turned to the comments regarding a social media corporation's goal to earn profits. He acknowledged that legislatures should consider whether the government was placing too many checks on individuals and businesses. In this case, the US Constitution provides people with unalienable free speech rights. Currently, people share those ideas via online social media. Suppose corporations capture the market share and decide they have the power to advance their political philosophy and become de facto governments by limiting speech. He argued they could not do so. For example, an online media platform like Facebook could potentially buy up companies that start to threaten them and their market share, or they may counter complaints by telling people to create their own online social media company. Yet very few people have the resources to do so, he said. 2:13:11 PM MR. TAYLOR offered his belief that corporations act in concert to strike down competition, which happened when [the conservative social media website] Parler was banned from using Apple's App for hate speech, and Amazon and Google subsequently banned it. 2:14:04 PM SENATOR HUGHES indicated that she, her husband, and her friends had been temporarily banned from social media. She wondered what remedy would hold up in the courts. She pointed out that newspapers publish people's opinions and letters, but the editor could write an editorial to state their position on an issue. She wondered if multinational technology companies could have a webpage to do something similar instead of posting on the user's page, stamping it, or making the content unavailable when there is a difference in opinion. She related scenarios illustrating differences of opinion regarding COVID-19 treatment. Instead of blocking users' views, she envisioned that big tech, such as Facebook, could post on their own web pages and use their algorithm. In doing so, platform users could read Facebook's comments, and readers could make up their own minds. She mentioned several social media platforms that were not part of the top three tech companies. She wondered if someone was pushing Chinese propaganda or denial of the Holocaust, those editors could warn users by posting on their own webpage. She asked if doing so would help mitigate it so courts wouldn't strike down the suspensions, blocks, or censures. She envisioned that this was something social media companies could do so it would not require a bill. 2:17:43 PM MR. TAYLOR responded that the short answer is yes. Corporations such as Facebook and Twitter could use algorithms and their platform to state their opinion. However, he related his understanding that this bill aims to prevent a large monopolistic entity from stifling users by banning or blocking, or fact checking, which is why it sets a minimum threshold for the number of subscribers. The bill aims to prevent the suppression of speech. He noted that a social media platform owner's fact check or opinion could be wrong. He said some allies who operate news outlets and internet media reported that when they post anything on Facebook about global warming that does not comport with a certain viewpoint, it will be labeled misinformation or partially false. Further, big tech companies will punish them by downgrading everything these allies publish because their material is considered misleading. SENATOR HUGHES thanked him for information about big tech companies changing algorithms. She reiterated that nothing would stop technology corporations like Facebook from having a post showing the other side of the issue. She suggested that conservative sites, like Rumble or Truth Social, could counter Chinese propaganda by cautioning readers to beware. She asked whether her solution would be permissible and if it would address Senator Myers' concern about state constitutional issues. 2:21:50 PM MR. TAYLOR agreed that members should be cognizant, mindful, and attentive to constitutional protections and guidance. He deferred to Senator Reinbold. He offered his view that the bill would not prohibit Facebook from presenting its point of view. 2:22:31 PM SENATOR REINBOLD stated that she drafted the bill in 2019 to prevent the courts from setting policy since the legislative branch sets policy. She referred to a memo from Legislative Legal Services [from Noah Klein dated February 17, 2022]. She read, "...it is not clear that an Alaska Court would have personal jurisdiction over the social media website." She said the memo says an Alaska court may dismiss a case. She referred to another section of the memo to a sentence related to First Amendment issues and read, "Because social media websites are private entities and not government actors, they are entitled to freedom of speech protections." 2:24:23 PM SENATOR REINBOLD stated that a webpage on a social media platform is the publisher and is responsible for publishing. She explained that social media platforms could advertise and publish their opinions and potentially make billions selling data, have free speech protections, but turn around and crush individual users from having free speech. SENATOR HUGHES stated that this bill says "big tech" platforms cannot censor users, not that the legislature will indicate what social media platform owners can say, except on user posts. She offered her view that the bill would work. 2:25:51 PM SENATOR KIEHL directed attention to language in the bill [page 2, lines 5-7] that specifies that using an algorithm to disfavor a user is prohibited. He said this appears to view social media as free speech, based on a percentage of use as to whether a person can compel a publisher to speak or refrain from speaking in their own business. SENATOR KIEHL stated that in the 50s and 60s, American members of the Communist Party were distraught because they couldn't get their viewpoints published in mainstream newspapers because the owners of mainstream newspapers had no interest. 2:26:46 PM SENATOR KIEHL wondered if the Juneau Empire, the local newspaper, should be compelled to print a letter to the editor from one of his constituents if it said scurrilous things about his opinions and parentage. MR. TAYLOR answered that this bill applies to user-oriented postings on media platforms, not newspapers. He offered his view that federal law provides protections for social media platforms to censure, block, and ban sexually obscene, excessively violent, or personally harassing material. Thus, if someone were to harass him on social media, a platform would have the ability to stop them. 2:28:24 PM SENATOR KIEHL asked for definitions of harmful content to minors, bullying, and harassing behavior. SENATOR REINBOLD responded that bullying and harassing already are in statute. She offered her belief that some terms were defined in the federal Communications Decency Act (CDA) of 1996. She deferred to Legislative Legal Services to respond. CHAIR HOLLAND confirmed that Legislative Legal Services was not online. 2:29:33 PM SENATOR KIEHL asked why there are no protections for speech for those under the age of 18 if the intent is to treat private for- profit social media as public squares and allow them to take over social media. SENATOR REINBOLD asked him to restate the question. SENATOR KIEHL stated that the bill places more restrictions on speech for a 17-year-old than a 19-year-old. He wondered why minors under 18 years of age are not protected in the bill. CHAIR HOLLAND asked him to identify the bill section. 2:30:40 PM SENATOR KIEHL directed attention to the definition of a platform user, page 3, line 14, to paragraph (3) "platform user" means an individual over 18 years of age who resides in the state and contracts with a social media platform;"." MR. TAYLOR related his understanding that minors must have parental consent to have a Facebook page. He hoped the issue would be worked on in the committee process. He recalled Senator Kiehl referred to a public takeover of social media. Instead, he offered his view that the bill says social media platforms cannot restrict or stifle anyone's free unalienable speech rights. 2:32:29 PM SENATOR REINBOLD recalled that she agreed to Facebook's broad terms of use when she set up her Facebook page. She wondered if the terms of use were limited to adults so that minors couldn't agree to the terms. She offered to research it and report to the committee. 2:33:18 PM SENATOR MYERS related his understanding that the sponsor viewed the social media postings as the new public square discussions. He asked whether the sponsor considered it wrong for somebody to stifle speech in the new public square. MR. TAYLOR agreed it was largely so. SENATOR REINBOLD interjected that it would have parameters. 2:33:56 PM SENATOR MYERS asked whether a comment section also qualifies as the new public square. MR. TAYLOR responded that social media platforms, by definition, have comment sections. People can comment back and forth on the topic when someone posts something unless the platform user blocks that person from posting on their page. For example, sometimes, he posts about public policy issues on platforms such as Facebook. Occasionally, a longtime friend will disagree with his political opinion, and that friend can choose to block them; any user can choose to block someone. 2:34:32 PM MR. TAYLOR noted that Section 230 of the Federal Communications Decency Act gave social media platforms the ability to censor postings containing sexually obscene material, excessively violent, or other material. Congress mentioned in its findings that the purpose of the law is to protect and encourage user decisions as to what information would be shared and received so that the platform user would have as much control over that process as possible. That's why it's important to ensure that social media platform corporations don't use their power nefariously to prevent people from sharing opinions. 2:36:47 PM SENATOR REINBOLD offered her view that whoever publishes comments must be responsible for disseminating them. She noted that Facebook encourages political figures to provide rules and guidelines that users must abide by to prevent users from harassing or posting hate messages. She related that Facebook advised her that they would shut down her political Facebook page unless she followed their rules. 2:38:12 PM SENATOR MYERS offered his view that the comments just made helped eliminate the problem. He related his understanding that Senator Reinbold didn't want to be responsible for comments made on her Facebook page. Facebook doesn't want to be accountable for platform user postings. He questioned why the bill would allow users to delete comments, including inappropriate or offensive ones, but not allow the social media platforms to do so. 2:39:07 PM SENATOR REINBOLD clarified that there is a difference between the social media platform and the platform user or publisher. She agreed that rules must be in place to avoid hate speech and that users must have decorum. She noted that the Facebook platform allows people to avoid hate speech by unfriending or blocking someone's posting on their page. 2:39:54 PM SENATOR SHOWER joined the meeting. 2:39:55 PM SENATOR REINBOLD said social media issues are continually emerging, but this bill specifically relates to the platform. She characterized the social media platform rules as similar to rules in a courtroom that allow people to exchange ideas but maintain decorum. 2:40:49 PM MR. TAYLOR offered his view that social media platform owners have been inconsistent. For example, sometimes they define themselves as platforms, and at other times they describe themselves as publishers. He stated that social media platforms are user-oriented. He maintained that Facebook allows users to operate platforms to share information, and platform users control their own space. He clarified that platform user postings are not Facebook's opinions because the social media platform owner has its publisher business model. He acknowledged that intricacies exist with social media platforms. 2:42:03 PM SENATOR KIEHL noted that under SB 214, the comment section on the New York Times and What's App would fit the definition of "social media platform" because they are internet websites or applications that enable users to communicate with each other by posting comments, and they have more than 5,000,000 subscribers. He offered his view that today's discussion has shifted from describing social media platform activities and what's written in the bill. SENATOR KIEHL referred to page 2, [lines 5-6] of the bill that states "the owner or operator of a social media platform may not intentionally fact check ...." He said he was unclear about the definition of an unintentional fact check. It further states that this section does not apply when something comes from an inauthentic source. He asked how the social media platform would determine inauthentic sources if it could not fact check. 2:43:18 PM SENATOR REINBOLD read the definition of "social media platform" in paragraph (8), beginning on page 3, line 31 through page 4, line 6, which read: (8) "social media platform" means an Internet website or application that enables users to communicate with each other by posting information, comments, messages, or images and that (A) is open to the public; (B) has more than 5,000,000 subscribers; and (C) has not been specifically associated with any single religion or political party since the inception of the Internet website or application. 2:43:51 PM SENATOR REINBOLD asked him to repeat the second part of his question. 2:44:03 PM SENATOR KIEHL stated that the bill prohibits the platform from fact checking, but it doesn't apply if what's at issue comes from an inauthentic source. He asked how social media platforms would determine an inauthentic source without fact checking. SENATOR REINBOLD asked him to cite the language in the bill. SENATOR KIEHL directed attention to the interplay on page 2, line 6, and page 2, line 31. 2:44:34 PM CHAIR HOLLAND noted that line 21 read "(6) comes from an inauthentic source or involves impersonation." 2:44:47 PM SENATOR SHOWER stated that the language [on page 2, lines 5-6] that prohibits intentional fact check confines it to a platform user's religious or political speech, so it would not broadly apply. 2:45:15 PM MR. TAYLOR related his understanding of an inauthentic source would be someone impersonating someone else. He argued that the New York Times was not a social media platform but a newspaper or publication. Its website wasn't established to allow people to communicate with one another in the same way as Facebook or Twitter. He read a portion of Sec. 09.68.055 (a) on page 2, lines 6-8. ... 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. 2:46:29 PM MR. TAYLOR envisioned that a social media platform owner could not label something "partially false" and then downgrade the person's account because it would limit the platform user from sharing information. He related his understanding that the bill would address those issues. 2:47:14 PM SENATOR REINBOLD noted that the language on page 2, line 6 differed from page 2, line 31. She referred to Sec. 09.68.055, and read: Sec. 09.68.055. Civil liability for censorship of speech by a social media platform. (a) Except as provided in (g) of this section, the owner or operator of a social media platform 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. 2:47:44 PM SENATOR REINBOLD cautioned members to consider the difference between the social media platform operator from the platform user. She directed attention to subsection (f), which she read earlier in the meeting. 2:48:03 PM SENATOR REINBOLD noted that the social media platform owner could ban, delete, or censor platform users if they engage in any of the speech in subsection (f), paragraphs (1)-(9), such as encouraging users to engage in self-harm. She emphasized distinguishing between the social media platform owner and the platform user. 2:48:53 PM SENATOR HUGHES directed attention to page 1, line 6 of Version I, and suggested that the committee probably would need to define "fact check." It would be important to investigate whether someone was impersonating a political figure, so that type of fact checking would be permissible. 2:49:23 PM SENATOR HUGHES directed attention to page 4, lines 1-6 of the definition of "social media platform," which should be better defined to clarify as Senator Kiehl pointed out that an online newspaper, such as the New York Times, could fit under the current definition because of their prolific commenters. She suggested that fixing that would be by adding language that identifies the primary purpose of internet websites or applications to enable users to communicate with each other. She offered her view that online newspapers' primary purpose was to provide news, not enable platform users to hold conversations. 2:50:32 PM MR. TAYLOR applauded the committee for taking up this topic because the platform users would like something to be done. He said he hoped that committee discussions would solve the issues raised today. 2:51:06 PM SENATOR REINBOLD referred to page 2, line 31, to paragraph (6), which read, "...comes from an inauthentic source or involves impersonation." She noted that inauthentic could also include bots or trolls, some type of non-person response. One of the reasons she brought this bill up was to put something in place before the election. She read a portion of the legislative findings and social media platform algorithms to illustrate her belief that SB 214 will protect religious and political speech and prevent malicious interference in state elections. 2:53:10 PM CHAIR HOLLAND held SB 214 in committee.