State Legislators Grappling to Address Big Tech Censorship

August 10, 2021 Updated: August 10, 2021

States are busy looking for ways to curb Big Tech’s outsized power as Google, Facebook, and Twitter have ramped up censorship in recent months.

Confronting tech censorship, however, has been especially challenging for free-market-minded legislators who struggle to achieve the right balance between regulating social media platforms and promoting innovation and free enterprise.

While state legislators are growing frustrated with Big Tech, there’s no easy solution to the censorship problem, according to Lisa Nelson, CEO of the American Legislative Exchange Council (ALEC), an organization of state legislators that advocates for limited government and free markets.

“We’re not for government picking winners and losers,” she told The Epoch Times.

The issue of big tech censorship was a hot topic at the annual meeting of the ALEC in July. The three-day conference brought together more than a thousand mostly Republican state and local leaders in Salt Lake City to discuss a wide range of policy issues, from education to tax and fiscal policy.

Content moderation on social media platforms and taxing tech companies were among the topics discussed at the meeting.

“On the tech content censorship issues, it’s going to involve long conversations about how to get it right,” Nelson said, adding that the legislators have been in talks with technology firms.

“I think the tech companies also want to get it right. They want to find a solution. They don’t like being in this position.”

Epoch Times Photo
Lisa B. Nelson, CEO of the American Legislative Exchange Council (ALEC), at the annual conference of ALEC in Salt Lake City on July 30, 2021. (Emel Akan/The Epoch Times)

Republicans criticize tech giants for unfairly censoring speech in the name of social good.

The Media Research Center has identified 2,500 cases of Big Tech silencing conservatives online since March 2020. The list includes suspending the accounts of sitting President Donald Trump in January, removal of the conservative platform Parler from Google and Apple, and censoring the New York Post’s Hunter Biden stories.

States including Florida, Texas, Utah, and North Dakota have pushed for laws to fight tech censorship.

In May, Florida Gov. Ron DeSantis signed legislation to hold big technology companies accountable for suppressing free speech and to protect Floridians’ ability to access and participate in online platforms.

Florida was the first state to attempt to regulate big tech companies, however, a federal judge on June 30 issued a preliminary injunction, blocking enforcement of the law.

The law requires social media companies to be more transparent about how they deplatform users, and allows any person to sue these companies for up to $100,000 in damages. It also introduces fines against social media companies that ban political candidates.

Lobby groups representing Facebook, Twitter, and major websites challenged the law in federal court, claiming that it violated private companies’ rights to freedom of speech protected by the First Amendment.

“Large corporations are using their economic power to impose their values. And it’s really troublesome,” Mark Wright, a Republican state lawmaker from Louisiana, told The Epoch Times.

While politicians shouldn’t interfere with businesses, he said, companies such as Facebook and Google are “clearly using a power that we’ve not seen really a whole lot in our nation.”

Hence, there’s some willingness to push back against it among state legislators, he said.

Epoch Times Photo
Mark Wright, Louisiana state lawmaker, at the American Legislative Exchange Council (ALEC) annual meeting in Salt Lake City on July 29, 2021. (Emel Akan/The Epoch Times)

While legislators feel very upset about the tech censorship, they are “all over the map” on this issue, since they have differing perspectives on how to deal with it, ALEC chief economist Jonathan Williams told The Epoch Times.

Most ALEC members espouse limited government, and “their instinctive reaction is, let’s not over-regulate, let’s not certainly break up companies,” he said.

Utah, for example, one of the states that seek to regulate Big Tech, has prioritized cutting red tape for years to become more business-friendly. Implementing policies in line with free-market principles has helped the state, making it the fastest-growing in the United States, according to Utah Senate President Stuart Adams, a Republican.

“People tend to vote with their feet, they tend to go where there are free markets, where there are opportunities,” he told The Epoch Times.

However, Adams and some free-market-oriented legislators now believe that regulation to some degree is necessary to protect internet users. Utah policymakers are still trying to figure out a way to address the censorship problem and protect Utahns from unfair suppression.

Legislators are wary about the unintended consequences, such as penalizing successful companies and violating their freedom of speech. But some legal experts say that large tech platforms function as common carriers and therefore question their First Amendment claims.

According to Philip Hamburger, a professor at Columbia Law School, a tech company should be treated as a common carrier if it serves a public function or enjoys a market dominance.

In an op-ed he co-authored for The Wall Street Journal, he said that large social media companies such as Facebook and Twitter “meet both definitions.”

“The speech at stake is not the speech of the companies, but the speech of others that they convey,” he said, adding that the tech companies participate in the censorship because of Section 230’s privileges. Part of the U.S. Communications Decency Act, Section 230 shields the social media platforms from being sued for the content they host.

“It therefore is not unreasonable for states to protect Americans from the tech companies’ government-sponsored censorship,” Hamburger wrote.

Emel Akan
Emel Akan is White House economic policy reporter in Washington, D.C. Previously she worked in the financial sector as an investment banker at JPMorgan and as a consultant at PwC. She graduated with a master’s degree in business administration from Georgetown University.