Bill would create private enforcement of restrictions on social media

By Gretchen Schuldt

Wisconsin social media users could sue social media companies for removing or limiting the exposure of posts made by or about political candidates or elected office holders, under a bill pending in the Legislature.

The bill, SB525, gives content by or about political candidates and office holders higher levels of protection than most speech by anybody else, including religious figures and non-politician civic leaders – unless they are talking about politicians.

Its dependence on private enforcement echoes a tactic used in Texas’ new anti-abortion law, which relies on litigation by private individuals to effectively deny women access to abortions in that state.

“It’s time that we ensure that Mark Zuckerberg, Jack Dorsey, and their Silicon Valley liberal allies cannot restrict Wisconsinites’ political speech in these essential public spaces,” said state Sen. Julian Bradley (R-Franklin), an author of the bill, in testimony prepared for a public hearing. Bradley’s Assembly co-author is state Rep. Cody Horlacher (R-Mukwonago).

Zuckerberg heads the company that runs Facebook; Dorsey, until recently, was Twitter CEO.
The bill was recommended for approval, 3-2 on a party-line vote, by the Senate Government Operations, Legal Review and Consumer Protection Committee. Voting for the bill were Republican Sens. Bradley, Duey Stroebel, and Mary Felzkowski. Voting against were Democratic Sens. Kelda Roys and Jeff Smith.

The Wisconsin bill would flat out prohibit social media companies from blocking or shadow banning content posted by or about political candidates or office holders unless the material is obscene or contains a credible threat.

“This prohibition applies only to official pages, accounts, profiles, or handles relating to a candidate's campaign or an elected official's office and does not apply to any personal pages, accounts, profiles, or handles,” according to the bill.

Successful lawsuits brought by private users could result in statutory damages of not more than $250,000 per day if the post involved statewide candidates and elected officials and up to $200,000 for a claim involving other candidates and elected officials. A judge could award punitive damages and court costs in either instance.

The bill also would allow user suits if a social media company removed, banned, or limited the exposure of posts by a non-politician without providing full detailed notice. Violations would carry maximum statutory damages of $100,000, plus punitive damages and court costs.

A critic of the bill warned that it would discourage social media companies from removing extremely violent or offensive content from their platforms.

Tyler Diers, executive director of Midwest TechNet, an industry group, said the bill would “subject Wisconsin residents to more abhorrent and illegal content on the internet by creating frivolous liability risks for social media companies” that do take down offensive material.

Wisconsin, Diers said, “should encourage these companies to have content policies, as they govern the removal of content showing the exploitation of children, child sexual abuse materials, bullying, harassment, gore, pornography, and spam,” he said.

The bill also would violate federal free speech law that governs content liability on the Internet, he said.

The law, Section 230 of the Communications Decency Act, has "empowered online intermediaries to remove harmful content while providing them with the same ‘conduit immunity’ that commonly exists in other real world offline contexts -- for example, not holding a bookseller liable for libelous books, but rather the individual who committed the libel,” he said.