SB 228: Government Intervention in Online Speech

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The World Wide Web was opened to the public domain in April of 1993. Little did anyone know at the time how much the internet would evolve over the next quarter-century and the opportunities it would present. The opening of the internet led to the creation of numerous popular goods and services that Utahns are using to this day. As the internet evolved, so did people’s digital voices. Increasingly, people found themselves using the internet to handle various tasks and to communicate with one another. The emergence of social media platforms is the latest iteration of increasing the ability of people to speak with one another.

Social media platforms have been in the news lately over their handling of various content moderation decisions. The conversation has surrounded a federal law known as Section 230 of the Communications Decency Act, which protects websites from liability for content posted by third parties. However, because of the disagreement between members of Congress on how they would like to reform the law, any movement on the federal level seems unlikely. This has led to a number of states introducing legislation to tackle this issue as a means of offering up their own solutions, and Utah is among those states.

Senate Bill 228, Electronic Free Speech Amendments, by Senator Mike McKell, takes aim at Big Tech companies and tries to mandate transparency in the process of content moderation. While well-intentioned, the bill is littered with problems.

For example, the bill requires consistency in moderation decisions from platforms. Many of these companies that would be subject to this law have to look at millions of pieces of content in a given day. Humans carry implicit biases and AI technology is imperfect. It is unreasonable to expect them to moderate content at such a large scale with any semblance of consistency.

This bill also faces constitutional concerns over violating the First Amendment by the government attempting to force speech to be carried by platforms. It also tries to force those platforms to answer to an oversight board, which is a relatively new and unproven model for content moderation review. The ramifications of this legislation are wide-ranging and could potentially result in less online speech for Utahns and subject them to harassment that would have a harder time being removed out of fear of litigation. Lastly, the bill is likely to run into problems of being preempted by federal law, like Section 230.

We strongly oppose this bill as it is not the role of government to force platforms to carry speech. This bill overrides platforms’ First Amendment rights that are protected under the freedom of association. While we sympathize with the frustrations people have expressed over the decisions of social media platforms, leveraging the power of government to force social media companies to adhere to political desires is not the road to go down.