Testimony regarding SB 111, “AN ACT to amend Tennessee Code Annotated, Title 4; Title 47 and Title 65, relative to social media.”

Testimony from:
Josh Withrow, Fellow, Tech & Innovation Policy, R Street Institute

Regarding SB 111, “AN ACT to amend Tennessee Code Annotated, Title 4; Title 47 and Title 65, relative to social media.”

March 14, 2023

Tennessee Senate Commerce and Labor Committee

Chairman Bailey and members of the committee,

My name is Josh Withrow, and I am a fellow with the Technology and Innovation Policy team at the R Street Institute, which is a nonprofit, nonpartisan, public policy research organization. Our mission is to engage in policy research and outreach to promote free markets and limited, effective government in many areas, including the technology and innovation sector.

We are concerned that SB 111 unconstitutionally constrains social media platforms’ right to curate users and moderate content on their services. Additionally, the assumption that social media platforms can be held as common carriers and regulated as such has no basis in law. For both of these reasons, the bill will likely be found to violate the First Amendment and be struck down by courts.   

SB 111 is the latest in a series of attempts by states to hold social media platforms as common carriers and regulate them. Both Florida’s SB 7072 and Texas’ HB 20, passed in 2021, found that social media platforms have a common carrier function and attempted to limit what speech they take down.^[1] Notably, neither Texas’ nor Florida’s laws have taken effect because both have been enjoined by the Supreme Court due to the major First Amendment concerns they raise. Should Tennessee’s version pass, it would certainly be subject to the same expensive and time-consuming litigation, pending the Supreme Court’s eventual resolution of these prior cases.

The fundamental assumption made by the findings section of SB 111 is that “if the analogy between common carriers and social media platforms is correct, then laws that restrict a platform’s ability to exclude users are appropriate and necessary.”^[2] But as some law professors have documented, social media companies are private entities which “exercise too much discretion over the content they host to be regarded as common carriers.”^[3] Indeed, the entire value of social media is in curating a community that a large user base wants to participate in, assisted by the algorithmic post-prioritization that determines what content users see. This sort of curated service is the antithesis of a common carrier.^[4]

This bill is functionally similar to Texas’ HB 20, in that it imposes a duty on a social media platform to not “intentionally deplatform or shadowban a user… if the basis of such action is rooted in political ideology, viewpoint discrimination, personal animus, or discrimination…” Putting aside the difficulty in proving the intent of any content moderation decision, very nearly every decision to remove a user or suppress their content could be viewed as “viewpoint discrimination,” subject to the judgment of the state’s regulators. Neutrality is inherently in the eye of the beholder.

The Tennessee Public Utility Commission would be tasked with deciding which editorial decisions made by social media platforms would be deemed “improper viewpoint discrimination,” effectively granting a government body the decision as to what is free speech or “censorship.”

The Supreme Court has long held that the First Amendment not only protects an organization’s right to host and curate speech, but also their freedom from being compelled to host speech.^[5] Those same First Amendment protections apply to digital platforms. To quote the late Justice Antonin Scalia, “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.”^[6]

Interestingly, SB 111 follows this prohibition on viewpoint discrimination except for content moderation protected by 47 USC § 230. This would appear to imply that SB 111’s authors see their compelled neutrality requirement as being consistent with Section 230. However, the authors of Section 230 have written that “[c]laiming to interpret Section 230 to require political neutrality, or to condition its Good Samaritan protections on political neutrality, would erase the law we wrote and substitute a completely different one, with opposite effect.”^[7] Section 230 thus protects precisely the kind of editorial decisions that SB 111 seeks to proscribe.

As a whole, SB 111 will likely fail legal challenges on both the theory that social media platforms can be regulated as common carriers, and because entities are protected from compelled speech by the First Amendment. We hope you will take these facts into consideration, and would be happy to discuss them in further detail.

Thank you for your time,

Josh Withrow
Fellow, Technology & Innovation Policy
R Street Institute
(540) 604-3871
[email protected]

[1] Senate Bill 7072, Social Media Platforms, Florida State Senate; House Bill 20, An ACT relating to censorship of or certain other interference with digital expression, Texas Legislature.

[2] Senate Bill 111, An ACT to amend Tennessee Code Annotated, Title 4; Title 47 and Title 65, relative to social media, Tennessee State Senate.

[3] Christopher S. Yoo, “The First Amendment, Common Carriers, and Public Accommodations: Net Neutrality, Digital Platforms, and Privacy,” Journal of Free Speech Law 1 (Aug. 30, 2021), p. 463. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3912855.

[4] Jason A. Cairns and Corbin K. Barthold, “Amicus Curiae Brief of TechFreedom in Support of Plaintiffs NetChoice and CCIA’s Motion for Preliminary Injunction,” United States District Court for the Western District of Texas, Austin Division, Oct. 8, 2021. https://techfreedom.org/wp-content/uploads/2021/10/File-Stamped-Amicus-Brief.pdf; Ashutosh Bhagwat, “Why Social Media Platforms are not Common Carriers,” Journal of Free Speech Law 2 (2022), p. 127. https://www.ifs.org/wp-content/uploads/2023/01/Why-Social-Media-Platforms-are-not-Common-Carriers-Bhagwat.pdf.

[5] Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241, U.S. Supreme Court, June 25, 1974. https://supreme.justia.com/cases/federal/us/418/241.

[6] Brown, et al. v. Entertainment Merchants Assn. et al., 564 U.S. 786, U.S. Supreme Court, June 27, 2011.  https://supreme.justia.com/cases/federal/us/564/786.

[7] Chris Cox and Ron Wyden, “Reply Comments of Co-Authors of Section 230 of the Communications Act of 1934,” Federal Communications Commission, Sept. 17, 2020. https://www.documentcloud.org/documents/7213938-2020-09-17-Cox-Wyden-FCC-Reply-Comments-Final-2.html.