In a move that has sparked heated debate, California's Democratic Governor, Gavin Newsom, is currently considering a contentious bill that could impose hefty penalties on social media platforms that fail to censor content deemed to violate the state's civil rights laws.
The bill, known as SB 771, has already passed both chambers of the state legislature and was delivered to Newsom's desk on Monday. If enacted, social media platforms that fail to remove content that infringes on the state's civil rights laws could face fines of up to $1,000,000.
Critics of the bill warn that it could lead to widespread censorship of lawful speech.
According to Conservative Daily News, lawmakers have defended SB 771 by pointing to the "rising incidents of hate-motivated harm," including "hate crimes involving anti-immigrant slurs." The bill's text also cites data from the Human Rights Campaign and the Center for Countering Digital Hate (CCDH), which indicates a 400% increase in "anti-LGBTQ+ disinformation and harmful rhetoric on major social media platforms."
Shoshana Weissmann, director of digital media at the R Street Institute, expressed her concerns to the Daily Caller News Foundation, stating, If people think platforms remove their content too much now, they should expect to see the pattern significantly intensify with this law.
Weissmann suggests that platforms will likely over-moderate and remove posts to avoid potential legal liability.
The proposed law targets platforms with $100 million or more in annual revenue, threatening them with $1 million in fines if they intentionally, knowingly, or willfully "relay" content that violates state law through their algorithms. Reckless violations could result in penalties of up to $500,000.
Weissmann further explained, Courts have recognized that algorithms are protected by the First Amendment, so punishing sites for using algorithms to deliver free speech would run into problems.
The bill's stated purpose is not to regulate speech or viewpoint, but to ensure that social media platforms, like all other businesses, do not knowingly use their systems to promote, facilitate, or contribute to conduct that violates state civil rights laws. However, opponents argue that the fear of massive fines will inevitably drive platforms to remove lawful content.
In their opposition to the bill, the California Chamber of Commerce, the Computer and Communications Industry Association, and TechNet wrote, By exposing these companies to civil liability for content they do not remove, SB 771 creates a chilling effect on their editorial discretion.
The significant, prescribed civil penalties potentially amounting to the billions for each violation would lead platforms to over-remove lawful content to mitigate legal exposure. They added that this would violate the First Amendment rights of users and social media platforms.
Weissman also noted that differentiating between sarcasm, serious posts, and sincere discussions about sensitive subjects could prove challenging for platforms, suggesting that over-removing content may be the only way to avoid liability.
The bill has received strong support from the George Soros-funded CCDH, which has repeatedly called for the censorship of conservative outlets and figures. In 2021, the CCDH released a report titled The Toxic Ten, demanding that Facebook and Google demonetize conservative sites such as The Daily Wire, Breitbart, Newsmax, The Washington Times, and the Media Research Center for spreading what they termed as climate misinformation.
The bill is also backed by other groups advocating action against disinformation, including the California Initiative for Technology & Democracy, as well as over a dozen Jewish organizations. However, it has also attracted opposition from a coalition on the left, including Voices for Justice in Palestine, the California chapter of the Council on American-Islamic Relations, Code Pink, IfNotNow California, and Queers Undermining Israeli Terrorism.
Critics argue that if enacted, SB 771 would likely face legal scrutiny under Section 230 of the Communications Decency Act, which protects platforms from being held liable for user-generated content. California has been a leader in efforts to regulate so-called hate speech, but has had to retract some measures following constitutional challenges.
In a related development, Google, YouTubes parent company, admitted that Biden administration officials repeatedly pressed it to remove video content that did not violate company policy, but was nonetheless deemed by the administration to be misinformation.
Furthermore, Meta shut down its fact-checking program across Facebook and Instagram in April, marking a victory for conservatives who have long accused Metas third-party fact-checking partners of ideological bias and collusion with government agencies to suppress dissenting views.
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