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.