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‘Exercise in Futility’

Industry Tells Montana to Reject Social Media Censorship Bill

Montana should reject a social media bill that mirrors a content moderation law in Texas, which the U.S. Supreme Court is likely to rule unconstitutional, tech industry officials told Montana’s Senate Business Committee during a hearing Friday.

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Montana’s HB-770 is a carbon copy of Texas’ HB-20, which the Supreme Court is reviewing (see 2212150057). Rep. Matt Regier (R), author of the Montana bill, said state legislators need to protect the free speech rights of state residents against platforms that should be treated like common carriers. HB-770 seeks to end social media “censorship,” allowing the state attorney general and private individuals to sue platforms that violate the measure.

It’s best to wait until the Supreme Court rules and avoid unnecessary but inevitable litigation over HB-770, NetChoice Litigation Director Chris Marchese testified in opposition to the bill. He noted a New Hampshire panel unanimously voted down a copycat bill because of First Amendment issues and the active litigation before the Supreme Court (see 2302010058).

Montana can’t legally force private companies to publish “dangerous or otherwise objectionable content,” testified Computer & Communications Industry Association State Policy Manager Jordan Rodell. Platforms remove content that’s dangerous but not necessarily illegal in order to honor commitments to users, and they have a free market right to do so, she said. The bill’s private right of action will lead to frivolous litigation and chill platform efforts to moderate, she said.

Montana’s bill will undoubtedly be challenged and likely will fail in court, said Chamber of Progress State and Local Government Director-Central Region Kouri Marshall. The chamber’s corporate partners include Meta and Google. HB-770 would also give “bad actors” a “blueprint” for avoiding detection when posting hate speech and misinformation online because it requires platforms to provide detailed reasoning for post removals and specifics about content moderation policies, he said.

This will enable child predators to avoid detection, said TechNet Executive Director-Washington and the Northwest Ashley Sutton: This is government regulation that impedes a company’s right to protect its business interests. She compared it to restaurants removing unruly patrons who disrupt the peace of other customers. Regier said it’s “absurd” to equate a social media platform with 50 million users to a restaurant bouncing a patron: “That’s not even apples to oranges. I don’t know what that would be: rocks to apples. Something weird.” Those who spoke in opposition Friday just want to continue to control the public square, he said.

The government isn’t allowed to “referee” decisions by private companies, said TechFreedom Free Speech Counsel Ari Cohn. The First Amendment protects citizens from government interference, not private interference, he said: It’s a basic right that extends to websites and hosting services all the same. Social media companies aren’t synonymous with phone service providers, as the latter provide private communications between parties without knowing the content of those discussions. Social media provide a broad collection of self-expression to a public-facing audience, and the editorial intervention contemplated in Montana is fundamentally at odds with the concept of common carriage, he said. No witnesses testified in favor of the bill.

Sen. Bruce Gillespie (R) asked Regier if Montana is going to “get nailed” with free speech issues over this: “Is this an exercise in futility?” Regier said the key question is whether platforms should be treated like common carriers, which the Supreme Court will decide. Montana should be on the side of Texas and Florida when the ruling comes down, he said.