The Big Sky Public Policy Institute published a press release earlier this week, applauding Rep. Sheldon-Galloway’s ingenuity and forethought in designating two bills for the purpose of protecting Montanans from Big Tech’s censorship. These two bills will ostensibly accomplish two different things:
- Regulate Big Tech firms who are operating under Section 230 of the Communications Decency Act, which gives them the liability immunity reserved almost universally for public utilities. The mechanism to accomplish this in Montana is the Public Service Commission, and Commissioner Randy Pinocci is working overtime to lobby for this change and insists it can be done.
- Protect Montana’s tax dollars, prohibiting the state government from conducting business with firms (like Google, Facebook, Apple, Amazon, Reddit, Mailchimp, Paypal, GoDaddy, etc) or banks that censor Montanans through viewpoint discrimination.
As these two bills are currently being drafted, certain questions have arisen as to how these changes could be made. We will answer those questions below.
Q. Can a state government intervene on this matter, considering Section 230* is a federal law?
A. Yes. In fact, states are welcome to intervene in such matters, according to Section 230 – the very law that shields Big Tech from liability. Clause (e)3 of Section 230 explicitly says, “Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section.”
* Section 230 is a federal law passed in 1996 that provides limited – but not guaranteed – liability to entities who allow third-party content to be published, protecting them from the liability for what other people produce. Approximately 58% of the time a court case regarding liability for publishing Section 230 is not invoked.
Q. Does 42 U.S. Code 1983 prohibit legal action against Big Tech censoring free speech rights of Citizens?
A. No. It’s quite the opposite. This law actually prohibits Internet utilities and other private corporations from the deprivation of any individual’s rights and liberties. This law states that if such censorship happens the company, “shall be liable to the party injured in an action at law, suit in equity, or another proper proceeding for redress.”
Q. Can states invoke Section 230, or is that only reserved to the federal government?
A. Yes. Individuals have invoked Section 230 more than 31 thousand times in state court.
Q. Does the Public Service Commission really have to the capacity to regulate Big Tech?
A. Absolutely. Title 69, Chapter 3, Part 2 of Montana’s Annotated Code explicitly gives the PSC the responsibility to regulate utilities. All the PSC needs to regulate Big Tech utilities is for the legislature to officially designate them a utility. By all accounts, Big Tech companies that provide the nation its Interent and Internet sevices qualify as utilities.
Q. Wouldn’t it be better to wait for the Federal Government to revoke Section 230?
A. No. Considering Big Tech just swung the presidential election for Joe Biden, and considering his overtures and promises to Amazon, Google, and Apple to work with them to harm shut down their small business competitors by increasing the minimum wage (which would lose Americans 4 million jobs and hundreds of thousands of small businesses), the likelihood of the federal government revoking Section 230 is next to zero. Additionally, Section 230 still serves a purpose, as many businesses that benefit from Section 230 are not Big Tech firms using it to censor American voices but by small start-ups who do not engage in such censorship.
Q. What’s the end-game of placing Big Tech utilities under the regulation of the PSC?
A. This move would force Big Tech to mitigate its liability by ceasing to censor Americans because of their point of view. The Public Service Commission will be able to determine, using the same guidelines they now have, if their utilities are discriminating against the ratepayer and taxpayer.
Q. Are any other states attempting to stop Big Tech censorship?
A. Yes, several. Rep. Tom Kading of North Dakota has proposed just such a bill, which has been covered by Fox News and other media outlets. HB1144 will allow civil actions against Big Tech companies for viewpoint censorship. Other similar bills are being proposed in Arizona and Wyoming. Outside of state legislatures, attorneys general in nearly 20 states are attempting to mitigate the dangers of Big Tech censorship.
Q. Is it within the power of the legislature to forbid the state government from conducting business with Big Tech companies that censor state residents?
A. It is absolutely within the power of the legislature to limit the expendiature of funds to certain companies in the best interest of Montanans. This particular aspect of the proposed change should be the easiest to accomplish and can be done with a simple majority vote. It is highly unlikely that a court would rule against it, as there are more than 2000 cases of precedent regarding limits placed upon state-funded commerce with companies for a host of different reasons.