Testimony from:
Steve Greenhut, Western Region Director, R Street Institute



March 28, 2023

Senate Transportation and Technology Committee

Dear Chair Farnsworth and members of the committee,

My name is Steven Greenhut. I am a senior fellow and Western region director at the R Street Institute, a free-market think tank that supports limited, effective government in many areas, including tech-related and social media issues. We believe that an open internet, free from unnecessary government regulation, is the best way to promote the widest-possible discourse and remain in concert with the principles of the First Amendment.

I am therefore writing to oppose Senate Bill 1106. The legislation forbids social media platforms from using post-prioritization or shadow-banning algorithms for content posted by or about a user known to be a political candidate. In dealing with obscene or otherwise offensive content, the legislation requires platforms to apply “censorship, de-platforming and shadow-banning standards in a consistent manner.” But moderation necessarily involves a level of subjectivity, which leaves the government and the courts to determine the meaning of “consistency.”

While its stated goal is to promote fair and open discourse on the internet, the bill makes government the arbiter of moderation decisions. In doing so, the legislation is an affront to free-market principles, imposing an unnecessary burden on private companies. The bill also gives carte blanche protections to anyone who goes through the modest steps of registering as a candidate, essentially carving out a special protect class of social media users.

Furthermore, the legislation imposes an arbitrary standard on “journalistic enterprises,” as it seeks to dictate how platforms handle content from these organizations. It is extremely problematic for legislators to try to determine the parameters of journalism, especially in our new media world. Often, blogs and other small operations engage in serious reporting. Recent scandals show that large operations—of the type protected by this legislation—have at times engaged in overtly partisan and ethically dubious behavior. It is unreasonable to offer overly broad protections based simply on the size of a particular organization.

I agree with the conclusion of NetChoice, a trade organization devoted to the protection of online expression, in its opposition to this bill: “(B)y forcing online services to host any and all speech, however, vile, from a favored class of users—‘registered political candidates’ and ‘journalistic enterprises’—SB 1106 deprives platforms of their well-established editorial freedom.”

Supporters of the bill claim to advance the principles of open debate, but government dictation of the terms of that debate on private platforms undermines a central tenet of the U.S. Constitution: the idea that private actors maintain the freedom to make editorial judgments. They take the power away from individuals and place it in the hands of government commissions. The First Amendment not only protects the affirmative right to speak and publish, but it protects individuals from being compelled to host speech.

Just because the social media platforms are a new technology does not exempt them from the protections of America’s founding document. The late Supreme Court Justice Antonin Scalia concluded that “whatever the challenges of applying the Constitution to ever-advancing technology, ‘the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary’ when a new and different medium for communication appears.” Perhaps that is why the federal Eleventh Circuit Court of Appeals last year rejected on First Amendment grounds Florida’s nearly identical law.

I therefore respectfully urge the committee to reject SB 1106.


Steven Greenhut
Western Region Director
R Street Institute
Sacramento, Calif.
[email protected]
Arizona lobbyist No. 3612711