Republican state lawmakers are working overtime to strip away the immunity shield most technology companies are entitled to. According to federal law, this liability shield is granted to web platforms through Section 230 of the Communications Decency Act.

Currently, there are about two dozen states where legislative Republicans have introduced bills that permit private citizens to file civil lawsuits against the so-called censorship of controversial speech on social networks.  One such bill is Senate Bill (SB) 12 — a bill backed by Texas Gov. Greg Abbott (R).

Senate Bill 12 in Texas

SB 12 would prohibit social media companies from blocking, banning, demonetizing, or otherwise discriminating against a user based on their viewpoint or location within Texas. Basically, the bill is presented as a reconciliation for viewpoints and individuals behind those denied a social media presence that runs counter to a platform’s terms of service. While the proposal’s public-facing documentation shows it directly applying to social media, a review of the bill says otherwise. 

A key reason adult performers and webmasters should pay attention to SB 12 is how the bill handles the term “interactive computer service.”  The introductory text to the bill explicitly defines an interactive computer service as “an information service, system, or access software provider that provides or enables computer access by multiple users to a server, including a service, system, website, web application, or web portal that provides a social media platform for users to engage in expressive activity.” 

The same definition under Section 230 is “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the internet and such systems operated or services offered by libraries or educational institutions.”

Misunderstood Interpretations 

Upon comparison, the Texas proposal attempts to remove the liability shield that incentivizes platforms to self-regulate for hateful and potentially illegal content. The nature of SB 12 runs completely counter to existing case law related to Section 230. As mentioned above, the act is intended to protect users based in Texas from censorship by social media platforms. An industry trade group, TechNet, noted that the content restrictions could open the way for children who use these platforms could be exposed to “harmful content of ill-intended users online.”

Servando Esparza, the organization’s executive director of Texas and the Southwest, said in a press statement that SB 12 “not only recklessly encourages companies to leave objectionable content in the public eye, but also creates a culture that supports frivolous lawsuits against American companies.”

With similar legal definitions, Senate Bill 12 would completely undermine the industry-efforts of content regulation. A sponsor for the bill, Republican State Sen. Bryan Hughes, has pressed that his legislation “would only apply to political and religious speech” to supposedly protect conservative voices online. 

Being a Republican stronghold, Texas has bought into the debunked theory that technology companies systematically repress conservative and extremist voices online. So, the fact that Hughes and SB 12’s other proponents claim that there is such a crisis reflects a willful ignorance of how partisans misunderstand section 230 and internet liability protection policies.

House Bill 1144 in North Dakota

Republicans in North Dakota’s legislature have also proposed legislation on similar grounds. House Bill 1144, the bill in question, is a proposed act that attempts to bypass Section 230 for state liability purposes. Like SB 12 in Texas, HB 1144 offers remedies for people to file civil actions against these platforms in a bid to prevent the restriction of content. 

The Disruptive Competition Project, supported by the Computer & Communications Industry Association, noted that “this type of legislation could force services to second guess every removal decision and inhibit rapid responses to emerging threats.”

Simply put, HB 1144 — as described by TechDirt’s Mike Masnick — is essentially a bill that says that “if you report a Nazi to Twitter, the Nazi can sue you for $50,000. Plus attorney’s fees.”

While the bill and others like it are said to deal with viewpoint discrimination specifically, such a law could make it harder for a platform to conduct the necessary content moderation regarding potentially unlawful and harmful content. 

Liability expansion

This is especially the case of states who may attempt to use these sorts of laws to inflict civil liability harms on adult entertainment platforms. Because state actions like HB 1144 and SB 12 are meant to circumvent the very nature of the federal Section 230 statute, any success to bring these proposals to the law could open up a variety of legal disputes that go beyond platform moderation.

By its nature, Section 230 has encouraged platforms since its ratification to ensure that content creators, regardless of the type of content, can publish and distribute on platforms without intervention from the federal government. Yes, some people use platforms for terrible acts like sexually exploiting a child or circulating non-consensual revenge porn. However, removing the liability shields for web platforms to self-regulate and tailor user experiences free of harmful and potentially illicit content is a step backward. It creates a far-reaching constitutional crisis that impacts much more than social media networks.

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