Friday, March 25, 2022

Tennessee legislature considers legislation to subvert the First Amendment.

by Rod Williams, March 25, 2022- The Tennessee legislature has a pending bill before it that would ban Facebook and other social media from curtailing speech on their platform.

Facebook and Twitter have angered many conservatives because they discriminate against conservative viewpoints. I just heard Tucker Carlson rant against Twitter the other day.  Carlson and many others present the issue as if conservatives were having their free speech right violated. This is simply not so. Only the government can violate your First Amendment rights. You have the right not to be silenced by the government.  That does not mean that someone else must give you a platform.

The First Amendment does not mean a newspaper has to publish your letter to the editor. It does not mean a billboard company has to rent you billboard space to post your message on their billboard. If a shopping mall says you may not hand out religious pamphlets in their parking lot, they have not violated your First Amendment rights. If a popular talk show host has a screener and selects certain callers and rejects others, those rejected have not had their First Amendment rights violated. If a church declines to let an atheist address the congregation, the atheist has not had his First Amendment rights violated. 

Bold Patriot a local pro-conservative brewery and bar often host conservative events featuring conservative speakers.  If a liberal group wanted to use the space for a liberal program and Bold Patriot refused, they would not be violating the rights of members of that liberal group.

This blog uses the Blogger platform which is part of Google. If tomorrow, Google decided my opinions were "hate speech," or spreading "misinformation," did not align with their community standards or whatever and deleted my blog, I would not like it, but I would not claim my First Amendment rights had been violated.

Most of the time, there is only one significant newspaper in a town.  That does not change the fact that you do not have the right to have your letter to the editor published in their newspaper.  Facebook and Twitter are the biggest social media outlets but not the only outlets. Even if they were, that would not change the fact that they do not violate the First Amendment by censoring speech.

When conservatives became angered at Twitter or Facebook, some tried platforms like Paler or MeWe or others.  Most came back to Facebook. There are dozens of ways to communicate on the internet other than Facebook or Twitter. There is Reddit and Nextdoor and TicTok and YouTube and Instagram and many many others. Now, Donald Trump has his own social media platform called Truth Social. If you don't like Facebook, join Truth Social.  Facebook and Twitter are only the most powerful platforms because they attract the most customers. They did not get big because the government forces you to use those platforms. 

Over the years, I have become accustomed to liberal advocacy of bigger and bigger government, more government control over the lives of citizens, liberal attempts to curtail our rights, and liberal subversion of the meaning of the constitution.  I don't expect more from liberals. I am appalled when conservatives do it.  The battle between left and right is becoming less and less a battle over principles but a battle over who can control the levers of power. I am not a big government, government control kind of conservative. 

Do conservatives really want the government to determine who is heard on social media platforms? Do we really want to transfer the decision of which voices get heard from the market to bureaucrats? Do we want to create a new bureaucracy large enough to regulate speech on the internet? Even if it starts out forcing media platforms to treat conservatives fairly, do you think it will always do that?  Someday, liberals may control the bureaucracy. Liberal advocacy groups will also be filing complaints with the Tennessee Public Utilities Commission.  Mission creep may dictate equal time and more and more control over content. 

What the Tennessee legislature is doing will likely be ruled unconstitutional.  It should.

The below article from Center Square explains this issue in more detail. 

Tennessee social media bill faces legal obstacles similar to Florida, Texas

By Jon Styf | The Center Square Mar 21, 2022 – Tennessee lawmakers pushing a social media oversight bill that would prevent users from being banned or shadow banned said it is not a First Amendment issue but a governmental course correction.

The vice president and general counsel of NetChoice, which successfully has been granted injunctions against similar laws in Florida and Texas on First Amendment grounds, said, however, the Tennessee companion bills (House Bill 2369 and Senate Bill 2161) not only violate the First Amendment but also would cost taxpayers for the added regulation and legal battle that would follow.

“What we’re seeing right now is lawmakers in the state of Tennessee following in the same failed legal footsteps of Florida and Texas,” NetChoice’s Carl Szabo said. “And it’s ultimately not going to get them where they want to be, which is to able to police the internet. Fortunately, our Founding Fathers created the First Amendment to expressly forbid and preclude this type of state-compelled speech.”

The companion bills passed the Senate Finance, Ways and Means Committee and the House Business and Utilities Subcommittee last week. The House bill is scheduled to be in front of the House Commerce Committee on Tuesday.

The bills would define a wide range of websites as social media platforms that are common carriers and then allow the Tennessee Public Utilities Commission (TPUC) to step in if Tennesseans are banned or shadow banned from a social media site.

The Consumer Services Division of TPUC would require social media platforms to register, and TPUC would create rules for platforms to follow regarding banning users and removing content.

If TPUC receives a complaint about a ban or shadow ban – which sponsoring Rep. Dennis Powers, R-Jacksboro, described as moving content down in a search engine search based on its content – and finds it in violation of the law, TPUC would notify the platform of the infraction and allow 60 days to correct. If that is not done, TPUC would hold a hearing.

If TPUC rules in favor of the user, fines will begin for the social media platform at a rate of $100,000 a day if the user is a political candidate or public official or $25,000 a day for others.

“I very much appreciate what you are trying to do,” Rep. Patsy Hazlewood, R-Signal Mountain, said to Powers, mentioning the large potential fines. “I don’t think anybody would deny that it’s an issue. I just have concerns about the process. It’s just something where I think we need to be very careful and judicious about. … Anytime you give that kind of authority to one group, then you have to be very careful.”

The fiscal note on the bill said it would cost TPUC $323,800 the first year, which would begin Jan. 1, and $316,300 annually afterward, though Powers said the bill sponsors are in negotiations with the Tennessee attorney general and TPUC on a way to use existing resources on enforcement.

Powers mentioned former President Donald Trump, the Knox County Republican Party and his cousin as people who were banned or censored for their political opinions. He said items defined as misinformation often are a matter of opinion.

“You may have been told some misinformation about this bill, and I just wanted to clarify that this is no growth in government and it’s protecting the free speech of everyone, all Tennesseans,” Powers said.

The injunctions in Florida and Texas are being appealed in federal court. Oral arguments are scheduled for April 28 in the Florida case and the week of May 11 in Texas.

Szabo said in those cases, NetChoice is asking for attorney’s fees to be paid for by the states. He was at both Tennessee committee meetings last week and said he was not allowed to speak on the legislation. Szabo said the Heartland Institute, which has supported the legislation in all three states, also was not allowed to testify.

Szabo said he hoped Tennessee would listen and slow down rather than attempting to enact the legislation, but NetChoice was prepared to fight the legislation on First Amendment grounds in Tennessee, if necessary.

“Tennessee can choose to – it’s not even rolling the dice, they’re going to lose – or they can see what happens in the Florida and Texas lawsuits and then make a more informed decision without putting at risk the constitutional protections of their citizens and Tennesseans' tax dollars and frivolous lawsuits,” Szabo said.

The Florida law defined social media sites as common carriers, an entity that delivers all that it receives, such as the United States Postal Service, Szabo said, and the court disagreed with that notion.

Szabo said legislating what private businesses can do is a slippery slope and conservatives, like himself, would be hurt more than anyone else if the government started controlling social media. He said impressions on social media for conservative websites are far higher than those for other political philosophies.

“I am not very comfortable with this,” Tennessee state Rep. Dwayne Thompson, D-Cordova, said during the House subcommittee meeting. “We have a trend of government getting involved in private businesses and this just seems to be another one.”

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