by Larry Magid
This post first appeared in the Mercury News
A bill being debated by the Iowa legislature could have the unintended consequence of preventing social media companies from protecting children as well as adults from cyberbullying, harassment, sexual solicitation, unwanted advertising and other harms. Other states, including Utah, are reportedly considering similar bills.
S.F. 402, which is currently before the Iowa state Senate, would, among other things “prohibit the state and political subdivisions from entering into contracts or provide tax credits to tech companies that engage in censorship,” according to the Iowa Torch.
Introduced by Iowa Senate President Jake Chapman (R-Adel), S.F. 402 allegedly aims to “protect Iowans from liberal executives in the Silicon Valley who are censoring your speech!,” according to a letter-to-the-editor he wrote for Perry News. He said the bill “establishes a mechanism whereby Iowa citizens will have their complaints investigated and heard before a court of law. Upon a finding that constitutionally protected speech was likely violated, the big tech companies will forfeit hundreds upon hundreds of millions of dollars in tax breaks, incentives and credits.”
The bill, endorsed by Republican legislators, is clearly a response to the perception espoused by former president Donald Trump and other Republican leaders that companies like Facebook, Twitter and Google are deliberately censoring conservative viewpoints.
Despite the fact that there are millions of conservative voices on social media platforms that have been allowed to share their political speech, some conservative leaders still say their voices are being suppressed. The tech companies are quick to point out that they only block speech or suspend accounts when they are in violation of their terms of service or community standards for such things as hate speech, harassment or spreading of dangerous misinformation such as demonstrably false information about COVID-19 that could lead to increased infections and death or clearly false statements about the outcome of a certified election that could lead to violence.
The bill does have some carveouts, but they don’t go far enough when it comes to allowing tech companies to ban potentially harmful material.
Why this bill is dangerous
The bill has an exemption for “obscene material,” which it describes in specific detail, but it does not exempt other material which — while legal — is nonetheless harmful.
For example, it’s quite common for social networks and other websites to ban material that is sexual in nature that fails to meet the specific definition of obscenity. Facebook’s ban of nudity is certainly an example, but even sites that allow nudity often ban other content which they consider to be offensive or otherwise inappropriate for their audience, which typically includes minors. In searching through the bill, I didn’t see the words bullying, harassment or hate speech, which are categories of “protected” speech that social media companies typically ban from their platforms.
As an internet safety organization focused mostly on youth, ConnectSafely has long recognized cyberbullying as a serious problem for young internet users and has encouraged social media companies to do all they can to prevent this potentially dangerous type of speech on their platforms. The same goes for harassment, which is a term typically used when adults are demeaned, insulted or bullied online. Cyberbullying and harassment can be a one-time event or can be repeated over time and can also be linked to stalking and the risk of physical danger. Yet, this type of speech isn’t necessarily illegal.
Hate speech, which may or may not be illegal, is also a serious problem, affecting not just people of color but women, members of the LGBTQ community and some religious groups.
There is also content online that promotes dangerous drug use, alcohol use by minors and self-harm including cutting, eating disorders and suicide. Not all of this material is illegal, but this bill could prevent social media companies from banning it. This bill could even prevent social media companies from banning dangerous yet constitutionally protected speech from Al-Qaidah, the Ku Klux Klan and other foreign or domestic extremist groups.
Even nudity, which is usually considered protected speech, can be disturbing to some online users and is the type of content that many parents do not want their children to see. The posting of non-consensual nude images is not illegal in every state and it can have devastating effects on people.
The bill could also have a negative impact on public schools if it prohibits them from using Google Tools for Education because of alleged censorship by Google-owned YouTube.
Dangerous misinformation
The issue of misinformation is a bit more controversial than other forms of objectionable speech that companies would be prohibited from blocking under this law, but such speech — while legal– can also be extremely dangerous. Health authorities from both the Trump and Biden administrations have worked hard to encourage widespread use of COVID vaccines and masks not just to protect individuals but also the people they come into contact with. I know that there are some who think that vaccines or unnecessary or dangerous or who simply argue that they shouldn’t be mandatory (they aren’t). And, while it’s important to allow debate about the efficacy and safety of vaccines, it’s also essential that the public get accurate information so that they can make up their minds based on facts rather than myths. I think it’s appropriate for social media companies to ban lies that promote dangerous behavior.
The same is true when it comes to election results. None of the major social media companies prevented anyone from publicly supporting candidates or discussing the pros and cons of the dozens of legal and legislative challenges in the aftermath of the election. And certainly, people are free to express their disappointment over the results. But claiming that the election was stolen or fraudulent — despite dozens of legal rulings, the certification by all 50 states, the vote of the electoral college and the final counting of the votes by Congress, is simply inaccurate and — as we saw on January 6, potentially dangerous. Because of the link between lies about the election results and violence, social media companies have temporarily or permanently suspended accounts from prominent individuals, including Trump. These suspensions occurred in the aftermath of the attack on the Capitol, but prior to that violence, Trump and nearly every other conservative speaker were allowed to post on virtually all social media platforms. Leaders and millions of people who have similar views are still allowed to post on social media as long as they don’t violate the companies’ terms of service. Despite claims to the contrary, there has been no widespread purging of social media users based on their ideology, advocacy of legal political actions or political speech. One reason I know this is because I follow many conservatives on social media who continue to express their views.
Unwanted advertising and sexual solicitation
Social media companies have rules against “spamming” that go beyond those inscribed in law. This bill wouldn’t likely affect their advertising standards, but it might prohibit these companies from blocking posts that promote products and services, even if they include false or dangerous claims. There are laws regarding adult sexual solicitation of minors, but other forms of sexual solicitations — currently banned by many social media companies — could be allowed if this law were to pass. The same goes for some types of sexual harassment, which, although perhaps legal, can be hurtful and potentially dangerous.
Social media and the first amendment
The first amendment was written to prevent the government — not private enterprises — from “abridging the freedom of speech” but it has never applied to private parties. A church, for example, is free to limit what can be said during a service. Newspapers and TV stations have the right to determine standards for what’s fit to print and broadcast. Employers have the right to limit what can be said in the workplace, and in some cases, discipline employees who embarrass the employers through public speech. A restaurant owner is allowed to refuse service to someone who is spewing comments that upset other patrons. Social media companies are not an exception.
Chapman has referred to social media as the “public square of the 21st century,” and to an extent, he is right. But even public squares have some rules when it comes to dangerous behavior. While I do believe social media companies have a moral responsibility to allow for a wide diversity of opinion, as they currently do, they certainly have the right to set rules as to what is and isn’t allowed. It could even be argued that the Iowa bill is itself a violation of the first amendment because it would be a government law telling a private party what type of speech must be allowed on its platform.
Disclosure: Larry Magid is CEO of ConnectSafely.org, a nonprofit internet safety organization that receives financial support from Google, Facebook and other tech companies.