Ilya Shapiro, a conservative legal scholar, speaks to the Arizona House of Representatives Committee on Oversight, Accountability and Big Tech on Oct. 16, 2023. Screenshot via Arizona Legislature/azleg.gov
The difficult question of who gets to decide what is lawful speech protected by the First Amendment and what is not is one of the questions that members of a legislative panel investigating Big Tech are pondering.
The Arizona House of Representatives Committee on Oversight, Accountability and Big Tech, which held its second meeting on Monday, is looking into ways to stop government officials and employees from pushing social media companies to censor speech that those officials flagged as misinformation. The creation of the ad hoc committee, chaired by Scottsdale Republican Rep. Alexander Kolodin, was at least partially inspired by the past actions of Gov. Katie Hobbs, when as secretary of state, she and others in her office asked Twitter to take down posts that contained election disinformation.
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Dean John Sauer, the former solicitor general of Missouri who has won injunctions in Missouri and Louisiana blocking the Biden administration from communicating privately with social media companies to urge them to take down content, shared with the committee his thoughts on government censorship. In 2020, he was the counsel of record in an amicus brief filed on behalf of several Republican attorneys general after the 2020 election in a failed bid to challenge the results of the presidential race in Pennsylvania, Wisconsin, Michigan and Georgia.
Sauer told lawmakers that monitoring of social media posts through a collaboration among state, local and federal officials, along with academic researchers at the Stanford Internet Observatory, has been going on in the U.S. since 2020. He claimed that the federal government used these researchers to launch a “mass flagging” campaign that it could not undertake on its own.
“The federal government cannot induce private entities to do what it cannot,” he said.
Sauer added that most social media platforms already have their own moderation policies, but they usually aren’t very aggressive in enforcing them, either because they don’t have the resources or because there isn’t a good economic incentive to do so.
He says that these people all worked together to try to censor protected political speech.
“They want to stop posts from going viral,” he said.
He added that a great example of this was when officials from the Arizona Secretary of State’s Office asked social media platforms to remove social media posts about Arizona’s “Sharpiegate.” This happened in 2020 when a false claim that ballots in Maricopa County weren’t counted because voters used Sharpie markers to fill them out went viral on social media.
“That’s core political speech that’s being shut down on the basis of viewpoint, by state and local officials,” Sauer said, while failing to acknowledge that the Sharpie claims were objectively untrue.
“They want platforms to take down admittedly true information that contradicts preferred government narratives,” he said later, predicting that the government intends to keep doing so through the 2024 election cycle.
He said that what was then called misinformation by senior White House officials from the Trump and then the Biden administration were later determined to be respectable, defensible viewpoints, including that COVID-19 was created in a lab in Wuhan, China, that COVID vaccines were not effective in stopping the spread of the disease and that voting by mail was an easy system to cheat.
But what constitutes a respectable, defensible viewpoint depends on who is making that determination, with Sauer claiming that “very debatable viewpoints get silenced.”
While the possibility of a lab leak cannot be ruled out, most scientists do not believe that is how COVID originated. Although Pfizer was not required to test whether its initial vaccine stopped the spread of COVID, only testing to determine if it protected the receiver from becoming ill, subsequent research has proven that vaccination did contribute to slow the spread of the disease. And while some continue to claim that voting by mail is open for rampant fraud, there is no evidence that’s the case.
Sauer argued that White House officials urged social media platforms to “take down the truthful stuff” because it was “too effective and too persuasive” in countering the federal government’s own arguments.
But Sauer used the attempted censoring of former Fox News host Tucker Carlson as an example of content that he said was truthful and too persuasive, even though lawyers for Fox told a judge in 2020 when Carlson was accused of slander that viewers should know Carlson was not “stating actual facts” on his show but exaggerating and making “non-literal commentary.”
Sauer made several suggestions for the Arizona legislature to consider implementing into law when it reconvenes in January, including prohibiting government actors from flagging social media posts for removal and allowing private citizens to sue for damages for every social media post taken down at the request of the government.
Ilya Shapiro, a conservative legal scholar whose talks at college campuses across the country have been the target of protests, spoke to the committee about the coercive power the government has over social media companies when it asks those companies to delete certain posts.
The legality of those requests depend on whether the social media platform really has the power to deny what the government is asking, he said.
Shapiro argued that the best way to deal with government censorship is to create more transparency, by enacting a law that would require government officials and workers to disclose to the public all requests to take down social media posts.
“In light of government power over social media, these requests are perceived as demands or veiled threats,” he said, adding that social media companies want to stay on the good side of their regulators.
“Sunshine is the best disinfectant,” he said.
Sauer added that the question of whether social media companies can censor speech themselves, without government influence, will be heard by the U.S. Supreme Court in February. The Texas law in question would allow the state government itself to take control of content moderation for social media sites.
Also offering his thoughts during the meeting was Carl Szabo, vice president at NetChoice, a tech trade organization that gets funding from companies including Amazon, Google and Meta, which owns Facebook.
Szabo advocates for freedom of choice on the internet. NetChoice challenged the Texas law that will go before the Supreme Court in February, to argue that the state cannot compel companies to host speech they don’t agree with.
When it comes to social media platform rights to censor content, Szabo pointed out that many of the posts that companies remove on their own are spam, and any law that might unintentionally stop companies from deleting those posts could end up with a clog of spam posts, making a site essentially unusable
He added that social media companies and law enforcement still need the ability to report and remove content that includes things like child sexual abuse and graphic violence, so lawmakers should keep that in mind when crafting legislation, being careful not to entirely ban government employees from flagging posts.
NetChoice has filed lawsuits in both Texas and Florida, challenging laws that say the platforms can’t remove any political content. NetChoice’s argument is that the First Amendment bars the government from compelling a business to say something that it doesn’t want to say, just the same as it can’t limit speech.
“Political speech is in the eye of the beholder,” Szabo said, adding that, under Texas and Florida laws, social media platforms would be required to host terrorist recruitment videos, because that could be considered political speech.
NetChoice won its challenges to both of those laws at the trial and appeals courts, and both laws are currently blocked until the cases are heard by the U.S. Supreme Court.
Kolodin asked whether the government could implement a law simply saying that social media can’t censor lawful speech, but Szabo countered that it’s difficult to cover all the bases, and that what is considered lawful could be a matter of opinion.
“Saying that a platform must host speech collides directly with the First Amendment,” Szabo said.
Kolodin told the committee that he’ll be mulling over these issues until the legislature begins its next session in January.
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