What Is The Best Solution To Stop Social Media Censorship And What Can You Do To Help?
What Is The Best Solution To Stop Social Media Censorship And What Can You Do To Help? — Guest post by Chris Sevier.
What really is the best way to stop mega social media websites from censoring users for religious and political reasons? Is it (A) an executive order signed by President Trump classifying social media websites as publishers/speakers, (B) a Federal Congressional amendment to section 230 of the Communications Decency Act (CDA), (C) a new federal law enacted by Congress that would classify major social media websites as public utilities, or (D) all of these things as Senator Ted Cruz recently suggested in an interview with Fox News. The answer is “none of the above.” By far, the best solution is for the states to enact a measure called the “Stop Social Media Censorship Act,” the language for which can be downloaded here for all 50 states and sent to your state representatives: www.stopsocialmediacensorshipact.com.
Legislators, both Democrats and Republicans, in over a dozen states have introduced this measure in 2020 before the corona virus shutdown took effect. The Stop Social Media Censorship Act is simply a state-level consumer protection statute that falls under deceptive trade practices. This op-ed sets forth the basic reasons why the Stop Social Media Censorship Act is the best solution and the other proposed solutions to combat the problem are a waste of time or even potentially counterproductive by comparison. There are three main reasons why the Stop Social Media Censorship Act is the best solution that this op-ed will unpack: (1) a social media website that is sued in civil court under the Stop Social Media Censorship Act could not successfully have the case dismissed by invoking a section 230 immunity defense because the Stop Social Media Censorship Act falls within the “state-law” exemption enumerated in subsection (e) of section 230; (2) the language of the Stop Social Media Censorship Act cures pragmatic problems by making lawsuits against social media websites affordable and rational; and (3) the Stop Social Media Censorship Act is the only bi-partisan measure that both Democrats and Republicans can get behind.
THE STOP SOCIAL MEDIA CENSORSHIP ACT IS THE BEST SOLUTION BECAUSE THE STATE LAW EXEMPTION UNDER SECTION 230 AND CAN OVERCOME AN IMMUNITY DEFENSE RAISED UNDER SECTION 230
The main reason the Stop Social Media Censorship Act is the best solution to this ongoing problem is because its passing would generate a statute that falls into the “state law exception” described in Section 230, subsection (e) of the CDA. What that means in plain english is that when a social media website is hauled into civil court under a cause of action brought under the Stop Social Media Censorship Act, the social media website will not be able to have the case dismissed by raising a section 230 immunity defense because the “state-law” exemption alloted in section 230 subsection (e) prevents it. The problem with other proposed solutions is that they do not fully take into account that social media websites sometimes act like publisher/speakers and other times act as neutral platform providers in a manner that is protectable under section 230. The Stop Social Media Censorship Act, does not conflict with the spirit of section 230, and the language of the Stop Social Media Censorship Act advances the purpose of section 230 in a logically consistent manner. The Stop Social Media Censorship Act would tie the hands of social media websites in court proceedings, preventing a social media website from escaping liability for censoring users for religious or political reasons for the first time. This factor makes the Stop Social Media Censorship Act by far the most viable solution ever proposed on this issue.
Here is some additional explanation for why other proposed solutions are not only a waste of time but are probably counter productive in some instances. President Trump’s executive order that seeks to construe social media websites as publisher/speakers is helpful insofar as it identifies a problem in the public record, but ultimately the executive order will likely fail to make a difference because it will likely be found to conflict with section 230 of the CDA. Props to the President for issuing the order which identifies a systematic problem, but ultimately a legislative solution at the state level is what is needed. Congress, not the President, makes the law. The Federal Courts will likely hold that Section 230 supersedes President Trump’s executive order in resolving a conflict in law in favor of statutory interpretation. A handful of Federal Courts, chaired by questionably honest Judges in the progressive state of California, have seemingly indicated in their rulings that a social media website that censors users over philosophical differences are merely “editorializing,” thus allowing the social media websites to be shielded from liability under section 230 in court proceedings. These rulings were likely issued in error. Nevertheless, the Federal Courts will likely find that President Trump’s executive order conflicts with the language of section 230 and is unenforceable. But when it comes to the Stop Social Media Censorship Act, the Courts will likely find that it fits within the state law exemption set forth in subsequent (e) of section 230, and therefore, bar the social media website from successfully invoking section 230 immunity as a defense in an effort to have the case thrown out.
Tucker Carlson, anchor at Fox News, appears to think that pressing Republican Senators, like Josh Hawley from Missouri, to introduce legislation that would clean up the language of section 230 would be the most effective solution, but that option is not viable because Democrats in the House would merely block such a measure. Putting energy behind that solution is ultimately a waste of time in comparison to the Stop Social Media Censorship Act option. Likewise, House Democrats would likely stop a federal act introduced by Senate Republicans that attempted to classify social media websites as quasi-state actors or public utilities. Such a legislative proposal, if successfully enacted, would subject social media websites to the same First Amendment restrictions that all government actors are subject to. However, such a classification raises a litany of other secondary problems and does tend to interfere with free enterprise. By principle, the government should always consider all other options before encouraging the trend of nationalizing private industry. Such a practice that could start a slippery slope is unwise and unnecessary given the fact that the Stop Social Media Censorship Act option is available and already written for all 50 states.
While it might be “politically sexy” for political pundits to focus on finding a
federal solution to the problem of social media censorship for emotional reasons, it is ultimately misdirection and a counter productive waste of time. So the best solution to actually stop social media censorship is for the states to draft, introduce, and enact the Stop Social Media Censorship Act because it will for the first time allow litigants to get around any immunity defense raised by the social media websites in motions to dismiss and allow the social media websites to invoke the immunity shield when it is actually acting as a neutral platform provider for the benefit of third party speakers.
THE STOP SOCIAL MEDIA CENSORSHIP ACT IS THE BEST SOLUTION TO STOP CENSORSHIP BECAUSE THE LANGUAGE MAKES ENFORCEMENT AFFORDABLE AND PRAGMATIC AND WILL HAVE THE DESIRED DETERRENT EFFECT
A second key reason why the Stop Social Media Censorship Act is the best solution is because the language of the social media websites making enforcement of regulations to stop social media censorship affordable, pragmatic, and effective. The Stop Social Media Censorship Act is a state-level consumer protection statute that falls under the deceptive trade practice section of the law. The Stop Social Media Censorship Act prohibits social media websites from censoring users for religious or political reasons. The act only applies to a social media website that has over 75 million subscribers that was never affiliated with a religious or political organization from its inception – which would include websites like twitter.com, facebook.com, and youtube.com. The act permits both the State Attorney General and censored users to bring a civil cause of action where they can seek $75,000 in statutory damages, attorney fees and costs, and other forms of relief.
When a person signs up to use a social media website, they are entering into a contact. The states, not the Federal government, normally have paramount jurisdiction over regulating contracts. “Contract law” is “state law.” States can set parameters and restrictions on contracts. This is especially true when the states have Constitutional legal basis to do so. When it comes to regulating contracts with social media websites, states have a compelling interest pursuant to the Free Exercise Clause of the First Amendment of the United States Constitution and the Constitution of their state to better ensure that their citizens are permitted to freely express their political and religious views in what amounts to the modern-day digital public square by holding social media websites to higher standards of care. Robust debate is vital to the health of our Constitutional Republic. Social Media giants have set out and have successfully created a digital public square by marketing themselves as being “free, fair, neutral, and open to the public” to in order to induce subscribes from all aspects of the political spectrum to subscribe, only to then turn around and unfairly censor users because employees who work for the social media website disagree with the users religious or political beliefs. It’s gotcha game scam that violates consumer protection laws.
When a social media website censors a user for religious or political reasons, they are engaging in a form of existing breach of contract to include “bad-faith, unfair dealing, unjust enrichment, false advertising, and fraudulent inducement.” Such a violation is actionable now in civil court under a general cause of action for breach of contract. A few lawsuits have been filed against social media websites by censored users under what amounts to breach of contract claims, but so far, social media websites have seemed to successfully have the lawsuits dismissed by invoking section 230 immunity defenses or due to other technicalities, thanks in large part to the intellectual acrobatics of progressive Judges in the backwards state of California. By contrast, in an action brought under the Stop Social Media Censorship Act, the court would not even need to undertake an analysis as to whether the social media website was acting as a speaker/publisher because the state law exemption would apply, taking away the immunity defense automatically.
Even if section 230 of the CDA did not exist or apply because the social media website was acting as a speaker/publisher, there are pragmatic problems with a litigant proceeding under breach of contract claim that are not present in an action brought under the Stop Social Media Censorship Act. There has been a serious problem of how to calculate damages in the wake of censorship in civil actions brought against social media websites in breach of contract cases. For example, when Diamond and Silk’s profile page was deleted by facebook because a post offended the delicate sensibilities of the employees who work there, Diamond and Silk approached lawyers seeking to hold facebook accountable only to be told that it could be difficult to prove actual damages. The Stop Social Media Censorship Act allows a victim to seek $75,000 in statutory damages so this means that a litigant could obtain monetary relief without having to prove actual damages. This part of the Stop Social Media Censorship Act – alone – is enough to put an end to wrongful social media censorship.
Moreover, $75,000 in statutory damages is a magic number because it is the jurisdictional minimum that gives a censored user standing to file suit in Federal District Court, under what is referred to in the rules of civil procedure as “diversity jurisdiction.” Federal Courts tend to like the kind high-brow tech litigation that the Stop Social Media Censorship Act could potentially produce. Also, litigating under the Stop Social Media Censorship Act in Federal Court would be relatively easy and cost effective thanks to the electronic filing system that the Federal Courts provide.
The Stop Social Media Censorship Act gets around the problem created by a judicial principle called “the American Rule.” The American Rule says that a litigant in a civil action cannot acquire attorney fees and costs from the opposing side unless there is a statute that allows otherwise. The high possibility of a censored user paying a lawyer more in legal fees than they might recover makes litigating against a social media website that censors an unrealistic option in the absence of the Stop Social Media Censorship Act. For example, in the wake of eggerious censorship by Facebook for sharing his Christian beliefs on traditional marriage and pro-life advocacy, Pastor Rich Penkoski, founder of Warriors For Christ, approach several lawyers about hauling Facebook into court only to be deterred from doing so once the reality set in that the cost of the lawyers would likely outweigh any potential reward. The fact that the Stop Social Media Censorship Act allows for an injured party to recover attorney fees will likely incentivise local lawyers to take cases, like Pastor Penkosk’s, on a contingency basis, making civil litigation pragmatic and affordable. This factor – alone – will deter social media websites from deceptively censoring users in bad faith, thereby ending their quest to persecute users for having the audacity to believe in absolute truth and the personalized truth of Jesus Christ.
The last section of the Stop Social Media Censorship Act includes the common sense exceptions for when censorship is permissible and recommended that is consistent with the language of the CDA. For example, social media websites are permitted and encouraged to remove content that is (1) pornographic, (2) calls for immediate acts of violence, (3) seeks to entice criminal activity, (4) is published from a fake account, or (5) is subject to removal by court order, etc. Also, minors lack standing to enforce the act, which means that a social media website can censor a minor for any reason it wants with impunity, which will help deter child on child cyberbullying. Adult users can of course continue to block any accounts they want to but the social media website employees have to stay out of it and remain neutral. The bottomline is this: despite the applicability of the CDA, the language of the Stop Social Media Censorship Act makes it by far the best solution to end unfair social media censorship because it makes the decision to hold social media websites accountable realistically affordable.
THE BI-PARTISAN NATURE OF THE STOP SOCIAL MEDIA CENSORSHIP ACT MAKES IT THE BEST SOLUTION.
Another reason why the Stop Social Media Censorship Act is the best solution is because Democrats and Republicans can agree to get behind the measure because both sides have been subject to abuse. Also, the Stop Social Media Censorship Act is not a drastic measure. It is merely a clarification of deceptive trade practice law. The Stop Social Media Censorship Act simply causes the law to catch up with modern day technology and does not require the dramatic repeal of section 230 of the CDA or executive orders which could be revoked by the next administration. The short legislative history of the bill demonstrates that the bill is a bi-partisan solution. The first legislator to introduce the Stop Social Media Censorship Act in 2020 was the head of the Republican Party in Florida, Senator Joe Gruters, with the backing of conservative activist Laura Loomer.1 (See SB 1266)2 The second legislator to introduce the Stop Social Media Censorship Act in 2020 was the father of Democratic Presidential contender Tulsi Gabbard, Democrat Senator Gabbard from Hawaii. (See SB 2765).3 Tulsi Gabbard’s campaign was censored so badly that she felt compelled to file lawsuits against Google. It would have helped the presidential contender’s cause if she had the option to proceed under Stop Social Media Censorship Act at the time she filed her lawsuit. It is not just lawmakers in red states who introduced the Stop Social Media Censorship Act, like Senator Silk of Oklahoma who introduced SB 533,4 Sen. Monroe of South Dakota who introduced SB 153,5 Rep. Salmon of Iowa who introduced HF 313,6 Rep. Hannegan of Missouri who introduced HB 2286,7 Rep. Garber of Kansas who introduced HB 2322,8 Del. Cole in Virginia who introduced HB 2635,9 or Rep. Griffey of Tennessee who introduced HB 2458,10 lawmakers in the North eastern blue states like New Jersey Assemblyman Auth and Rhode Island Representative Price have introduced the measure as well. (See A579811 and H7325).12 If the covid shutdown had not occurred Democrat and Republican lawmakers in a litany of other states would have introduced the measure as well.
Another reason why the Stop Social Media Censorship Act has bi-partisan support and can become the law is because social media websites have been unwisely censoring both Republican legislators and Democrat legislators who are they deem to not be “wok enough.” Democratic Gretchen Whitmer of Michigan has been censored by social media websites for not being progressive enough which compelled her to call upon the republican dominated state legislature to find a solution. So far, the Stop Social Media Censorship Act appears to be the appropriate solution with Rep. Rendon stepping forward to lead the charge. Senate Majority Leader Showers from Alaska and Senator Hughs from Texas have both been direct targets of social media censorship, which has compelled them to take interest in sponsoring the act for their state. The Stop Social Media Censorship Act will not necessarily help the Republican or Democrat party, but it will help the viability of our Constitutional republic by encouraging robust debate. By now, just about everyone is put off by the self-entitled brats who work at social media websites who suffer from a refusal to think logically and from moral superiority complexes that are dangerous to the viability of our Constitutional Republic. The evidence shows that the Stop Social Media Censorship Act is not just one option amongst many, but that it is the best option because it incorporates so many aspects of existing law, is realistically enforceable, and can be supported by both Democrats and Republicans.
HOW CAN YOU YOURSELF PLAY A DIRECT ROLE IN STOPPING SOCIAL MEDIA CENSORSHIP?
Conservative outlets, like the Daily Wire, are great at identifying problems, but they are not the best at giving a direct solution or suggestions on how patriotic Americans, like you, can make a difference. This op-ed provides a direct call to action as to what you can personally do today to help President Trump and your fellow Americans end the nightmare of social media censorship. Step one, go to www.stopsocialmediacensorshipact.com. Step two, click the icon for your state and download the language of the bill and the talking points located there. Step three, go to your state legislature’s website. Step four, call and email your state representatives and senators – especially the members who are assigned to the judiciary committee or who are in leadership – and ask them to draft, introduce, and enact the Stop Social Media Censorship Act. All that is need is just a little bit of pressure on the state legislature to enact the bill and this problem will be on the path to resolving the problem the best that it can be. The greatest weakness with this bill is that not enough people know about it and there is not an emotional swell around it. You can change that by heeding this call to action.
OTHER RESOURCES TO BETTER UNDERSTAND THE STOP SOCIAL MEDIA CENSORSHIP ACT
In terms of other resources and material, here is a short three minute video that explains the essence of the Stop Social Media Censorship Act in more detail: https://youtu.be/D66NZpe_ZP4.
If you want more information on why section 230 will not successfully be used to stop the enforcement of the Stop Social Media Censorship Act in civil litigation, here is a more in-depth analysis assembly by federal litigators who have litigated issues involving section 230 in the past:
- Virginia Republican introduces measure to stop social media censorship
- Arkansas GOP State Rep introduces measure to stop social media censorship
- South Carolina GOP Rep to introduce measure to stop social media censorship
- Video of the Day: Explaining the Stop Social Media Censorship Act
- Facebook censors pic of Santa kneeling before baby Jesus as ‘violent content,’ allows actual violent content against Christians
- Twitter bans conservative Christian for defending faith, calling out censorship
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