The Georgia State Senate recently passed SB 393, a bill that would significantly expand the state’s regulatory power by allowing it to designate certain social media platforms as common carriers and restrict the ability of these platforms to moderate or remove content. Lawmakers at the state and federal level have been increasingly looking into this issue. Unfortunately, this bill would not have the intended effect of promoting free speech and would come with a host of problems for consumers.
Promoting free speech and open exchange of ideas is important, and an ideal that is deeply ingrained with many Americans. New technologies have unlocked numerous opportunities for Americans and individuals around the world to communicate. While SB 393 states its objective is to further promote free speech, it would unfortunately open the door for frivolous lawsuits, harmful content, and not achieve this laudable goal.
This bill would prevent a social media platform from censoring or discriminating against a user based on viewpoint, race, age, and other criteria unless the content is “obscene, lewd, lascivious, filthy, excessively violent, or harassing.” Unfortunately, this would serve as catnip for lawyers as any breach of this standard would allow a user to sue. Lawyers could file a slew of dubious lawsuits by arguing that content was removed, shadow banned, or otherwise discriminated against by a social media platform. Whether these lawsuits are frivolous or not, the reality is that this would mean mountains of lawsuits and legal fees. It would also limit incentives for any competing social media, like Parler, from reaching a threshold where they would be open to this crushing legal liability.
A common carrier designation would also lead platforms to leave harmful content up that does not fit into the obscene, harassing, and filthy carveout. Platforms would likely take a much more hands off approach to moderation rather than open themselves up to liability that they are discriminating against certain content, which means spam and other unwanted content could be allowed to proliferate online. The types of content that are harmful are limited only by the human imagination. Common carrier designation can make it riskier for Georgians and children to be online.
Common carrier designations can make sense in some cases, especially where a lack of physical space is an issue, like a competing subway system. This does not apply to social media platforms. Social media platforms are still relatively new, and while conservatives may have concerns about the current landscape, lawmakers should not make problems worse by imposing onerous regulations that will lessen the chances of new competitors entering the market. New social media platforms have, and will likely continue to, enter the market and bring different approaches to content moderation. Light-touch regulations will help encourage a robust and competitive market.
Understandably, policymakers want to ensure Americans can participate in online discourse. However, SB 393 is not the answer to concerns over content moderation policies and political bias. While trial attorneys may welcome this change, it would not serve consumers well or accomplish its intended purpose.