Responding to the Big Tech lobbyists opposing the protection of Montanans against censorship, pertaining to HB587, HB597, and HB573
On Wednesday, February 24, the Energy, Technology, and Federal Relations Committee, chaired by Rep. Derek Skees, heard arguments for and against HB587 and HB597. These bills, sponsored by Rep. Lola Sheldon-Galloway, aim to protect Montanans against viewpoint discrimination and to protect them equally under the law. Opposing them were Big Tech lobbyists who called in to testify against the bills.
You can watch the hearing here.
Meanwhile, the committee is also slated to hear HB573 by Rep. Brad Tschida on Friday at 3PM. It’s expected that the same lobbyists, and maybe more Big Tech lawyers, will testify against Tschida’s as well.
WHAT THESE BILLS DO
HB587 will allow Montanans the right of due process when their messages, posts, updates, etc are censored by Big Tech. The bill provides for the ability of state residents to seek legal recourse when they are not being treated equally under the law compared to those with ideological, religious, or political beliefs preferred by Big Tech utility providers.
HB597 will specify that Big Tech utilities are indeed communications utilities, and as such, should be regulated by the Public Service Commission which is already tasked with regulating communications companies. With this bill becoming law, consumers with a complaint against Big Tech for unfair business practices may take their issue to the Public Service Commission to obtain relief.
HB573, sponsored by Brad Tschida, is similar to HB597. With language that more deftly circumnavigates around Section 230 of the federal Communications Decency Act, the bill is written differently than HB597 but serves the same purpose. Ultimately, the legislature will need to decide which bill better serves Montanans and, if necessary, reconcile the two bills together or pass one to the exclusion of the other.
RESPONDING TO BIG TECH LOBBYISTS
Claim: The Public Service Commission is too small to handle oversight of Big Tech utilities
Response: What these bills do, HB597 and HB573 in particular, is provide a means for due process when Montanans are discriminated against by Big Tech because of their beliefs, opinions, religion, political views, or ideology. While any deliberative body could theoretically be used to facilitate this due process, in Montana it most logically would be the Public Service Commission.
While the Public Service Commission is the smallest and most inexpensive department of state government, consisting of five elected officials and their staff, the choice of the PSC for this function is ideal.
But is the department too small?
One lobbyist said in opposition to the bill that the PSC did not have the size and staff necessary to regulate social media for companies that provide services to one million Montanans. One wonders how many Montanans Big Tech plans on censoring if they’re suggesting that one million Montanans might seek legal recourse.
In reality, elsewhere these laws have been in place, 87% of cases aren’t litigated. Instead, they are settled. In the vast majority of circumstances, consumers are simply able to file a complaint against Big Tech, who quickly relents and settles the matter out of court. In these instances, the PSC would not be involved at all.
In the other 13% of cases, the PSC would merely need to use their existing staff and resources to ensure the protection of Montanan’s free speech.
But on this matter, Public Service Commissioner Randy Pinocci said in his testimony, “Banks put a security guard outside to keep it from being robbed. Banks with security guards don’t usually get robbed. Robbers look for banks without security guards. In other words, let the PSC be the security guard and they’ll stop robbing us.”
Claim: Big Tech is just trying to protect people from sex traffickers, terrorists, and pornographers.
Response: This was a repeated claim by Big Tech lobbyists at the February 24 hearing. They claim that Big Tech is merely trying to protect us from that which is indecent and unwholesome, repeatedly using the analogy of a restaurant expelling a customer who kept overthrowing the tables or disrupting the establishment.
However, likening the many Montanans who have been kicked off of Facebook or Twitter, or whose views are suppressed in other platforms, to those guilty of criminal mischief, is truly insulting.
Nearly 75% of Americans believe that Big Tech is censoring Republicans (source link). This isn’t pure imagination or a nationwide conspiracy consisting of both conservatives and liberals. This isn’t mass hysteria or myth. It’s very real.
Far from limiting their censorship to hardcore pornography, sex-trafficking, and terrorism, Facebook alone purged 7 million “harmful” posts from Americans in just a three month time period of April to June of last year (source link). Among these supposedly “harmful” posts contradicting the preferred narrative of some in the medical community was a complete throttle-ban of the Montana Daily Gazette on Facebook for posting a video of Dr. Annie Bukacek – an award-winning physician and health official in the Flathead valley – warning that physicians were inflating COVID-19 figures as the cause of death on death certificates. Her assessments were later proven accurate and admitted by the Centers for Disease Control and Prevention, but Facebook has yet to remove their “fact check” censorship.
Montana publishing group, The Gideon Knox Group, which publishes more than 20 news sites, was kicked off of Facebook or other Big Tech platforms for the following reasons:
(1) Alleging that Bruce Jenner is a biological man (source link)
(2) Emailing subscribers news links to The Federalist and other conservative sites that MailChimp did not approve of (censoring our private communications) – (source link)
(3) For citing the DSMV – the major psychiatric authority used by clinicians and universities around the world – classifying transgenderism as a mental health disorder (source link)
(4) For quoting LGBTQ activists demanding to be first in line for COVID-19 vaccines because of their immune deficiencies, which is a demonstrable fact and came to pass in many states and municipalities (source link)
(5) For referring to Kyle J. Rittenhouse, who has yet to be found guilty in a court of law for defending himself against violent attackers using weapons against him, as a hero (source link)
(6) For reporting on the indisputable fact that numerous individuals setting fire to national forests last summer were Antifa organizers per their arrest records and social media (source link)
(7) For “dead-naming” individuals or by “misgendering” (aka correctly gendering) someone (source link)
(8) For reporting on anti-Christian persecution in Canada (as mentioned in Jordan Hall’s testimony yesterday)
This is just one group of Montana-founded publications, but how many others are there in the Big Sky State? While all of these things might be considered “politically incorrect” (no matter how factually correct they may be), hate speech should not be defined as “speech that you hate.”
But the claim by Big Tech lobbyists that they’re only censoring criminal activity is insanely inaccurate. Consider, for example, their ban of the satire site, Babylon Bee (source link). Or consider their ban on conservatives, like Candace Owens (source link). Or consider their ban on Christian evangelist, Paul Washer, censoring his most famous sermon which contains nothing controversial at all (source link). Or consider their ban on Praeger University, which does little more than teach on the U.S. Constitution (source link). And then we have, most famously, their ban of President Donald J. Trump for that which was neither criminal nor convicted in Congress. The head Facebook moderator said that they ban anyone wearing a MAGA hat for domestic terrorism, and they said it on video(source link). Pinterest banned a pro-life group, labeling their content as “pornography” (source link). Twitter has banned pro-life groups from sharing their videos (source link).
Meanwhile, their insistence at censoring religious and political speech has allowed them unable to attend to the serious issues of sex-trafficking and terrorism, has allowed them to become a haven for actual criminal behavior (source link).
Obviously, sex-traffickers and terrorists will not be seeking adjunctive relief from Montana’s Public Service Commission, but if they were so foolish, the Attorney General’s office would soon send someone to knock on their door.
What these bills are about is preventing Big Tech utilities from wrongfully terminating or censoring the accounts of law-abiding Montanans simply because of their deeply held religious, political, or ideological beliefs.
Claim: Big Tech’s utility consumers have signed ‘terms of service’ agreements voluntarily subjecting themselves to censorship
Response: This was repeatedly mentioned by Big Tech’s lobbyists in yesterday’s hearings. Does a company’s terms of service prevent customers from seeking recourse through constitutionally-provided Due Process?
First, Big Tech lobbyists ignored the reality that Big Tech changes their terms of service arbitrarily, capriciously, and for the seeming purpose of election meddling. Facebook, for example, changed their terms of service during the height of the 2020 presidential primary in timing that’s beyond coincidental.
But beyond the fact that their terms of service are arbitrarily changed and unequally enforced upon their customers depending upon their ideological bent, it should be noted that a company’s terms of service neither transcend nor negate an American’s constitutional rights to equal protection under the law.
The fourteenth amendment guarantees that all citizens must be treated equally. This constitutional liberty is not suddenly thrown away because a company has notified a customer that by continuing to use their service they are agreeing to newly drafted terms of service.
Due process still remains a constitutional right, even in light of disputes between customers and companies. These bills merely allow an avenue for due process to take place with Big Tech, as it would any other utility or industry.
Claim: These bills will prevent spam filters from working.
Response: This is flatly absurd. Spam filters can be changed according to the customer’s liking. What is, and is not, considered spam (unwanted emails) is ultimately the decision of the consumer, with nearly every email service allowing customers to mark emails as spam from certain senders and “whitelisting” other sends as not spam, to make sure it’s seen in their inbox.
To make this a fair comparison, if email platforms operated as most social media does, it would determine for you what you can see or can’t see with no option to whitelist emails improperly categorized as spam. As frightening as this would be, it is actually happening with emails servers such as MailChimp, which has not only banned the Gideon Knox Group, but also lawful gun groups from sending emails despite their compliance with the Second Amendment and all other local, state, and federal laws (source link).
When even email providers are “fact-checking,” censoring, and canceling consumers with viewpoint discrimination (source link), our private correspondence isn’t even safe. Meanwhile, Big Tech’s lobbyists are also asking for the ability to censor or suppress private messaging apps like Telegram, WhatsApp, and Signal to stop person-to-person direct communication (source link).
Claim: Big Tech is not a monopoly, and there are lots of viable alternatives to Facebook and other platforms
When Standard Oil was broken up as a monopoly in the 1911 case, Standard Oil Co. of New Jersey vs the United States, it held 90% of the petroleum industry (source link). Technically, therefore, Standard Oil had competitors. But according to the ruling, 90% still qualified as meeting a monopolistic standard.
While Big Tech’s lobbyists insisted that alternative social media platforms like Parler, MeWe, and Gab all were viable alternatives to Facebook, reality shows this not to be the case.
The Big Tech companies of Facebook, YouTube, Pinterest, YouTube, and Instagram alone contain 97% of social media’s industry share (source link). Outside this cabal, which operates together in a coordinated fashion to ban conservatives (source link), other platforms only enjoy 3% market share, well below that of Standard Oil in 1911.
Parler, their competition, was banned unilaterally by Google, Amazon, and Apple within hours of each other (source link). Gab has not been allowed to place an app in the Google Play Store or the Apple app store (source link). With 83% of customers using mobile devices to access their speech platforms, this means they are unable to use Big Tech alternatives (source link).
Claim: Big Tech lobbyists say they’re just trying to protect against obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable subject matter
HB587 explicitly says that which is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable subject matter” does not apply (click here to see for yourself). Therefore, this is a moot point.
By regulating Big Tech or providing Due Process to consumers, these laws will merely allow a constitutional means to ensure that Big Tech isn’t classifying political, religious, or ideological views they don’t like as “obscene, lewd, lascivious,” etc. Facebook, for example, has banned many individuals they have deemed “dangerous” who have never been arrested, charged, or investigated for any crime (source link). Montana needs to ensure our citizens aren’t being deemed as “dangerous” merely because they don’t share the values in Menlo Park or Silicon Valley.
How many Montanans have been kicked off or censored in social media?
While studies have not been done in Montana independently of other states or regions throughout the United States, it’s estimated that approximately 140 thousand Montanans have been kicked off of Facebook either temporarily or permanently.
This figure is derived by taking numbers regarding Facebook’s bans nationwide, and applying it per capita to Montana’s population, and factoring in Montana Facebook users aged 16 and up. But given Montana is more conservative than average, actual figures may be far higher.
One Big Tech lobbyist claimed, “If true, that would be a substantial number of Montanans.”
That’s the point. It is.
But Facebook isn’t the only culprit. On January 11, Twitter purged 70 thousand accounts belonging to conservatives in a single day (source link). But if these figures seem dubious, blame Big Tech, which refuses to release its censorship figures to the United States Congress (source link). They are unaccountable to anyone, and that needs to change in Montana.
Are other states taking similar measures?
Absolutely! North Dakota, Florida, Texas, and six other states (including Montana) have already sued Facebook, Twitter, Apple, Amazon, and Google (source link).
Meanwhile, the New York Times reports that State Houses all across America are considering these very options discussed here (source link). HB 587, for example, was derived in part by using North Dakota legislation, and HB573 was derived from legislation in Arizona and Florida.
Will these be tossed by the courts because of Section 230 and their violation of the Supremacy Clause?‘
What the courts may or may not do is not really the business of the legislature, which is designed to represent the people. However, if written and amended as necessary, they should pass muster. Constitutional rights are not overturned by even federal law, unless that change is to the constitution itself.
Chiefly, the rights of due process and equal protection are being violated by Big Tech, despite the wording of Section 230.
Did the Big Tech lobbyists make any good points?
It is the view of Big Sky Public Policy Institute that amendments may need to be made, in particular, to HB587 and HB597 to change wording as it relates to “damages” or “fines” to avoid the risk of running afoul of federal law. There are at least four other kinds of relief that may be granted to Montanans when they are wrongfully censored by Big Tech.
Most prominently, they may be given injunctive relief (a court order), which includes most notably the restoration of their accounts and messages. This does not run afoul of Section 230.
There is also a right to recover “reasonable costs and fees” to litigate injunctive relief. This means that Montanans can issue a demand letter that their speech rights be restored to ensure Big Tech can correct their error, without costing anyone money or involving the Public Service Commission. This way, if Big Tech is in error, Montanans will not bankrupt themselves asserting their rights.
Third, Big Tech can be fined for non-compliance to the injunctive relief granted Montanans by the court, jury, or regulatory body. In HB573, this amount would be up to 1% of the company’s revenue, with interest accruing daily.
Other actions, not negating Section 230, may include the right to a jury to determine who has the authority to decide who can be denied their First Amendment rights and for what cause.
What kinds of censorship are Montanans facing?
These include outright bans, deletion of posts, statuses, and updates, or “shadow banning” (artificially limiting the reach of posts or messages without telling the user), or “throttling.” These things currently are being done by Facebook, Twitter, YouTube, Vimeo, and email carriers.
Can’t Big Tech regulate itself?
Big Tech and their lobbyists have not taken an oath to uphold the Constitution of the United States. Our publicly-elected officials have. They’re the ones tasked with protecting Montanan’s constitutional rights. Ergo, they should be the ones doing the regulating.
In the simplest terms, why should you vote for these bills?
As stated above, Montana’s elected leaders have sworn an oath to uphold and protect the Constitution. Chief among these is the right of due process and equal protection. By voting for these bills, you are upholding your oath of office to protect Montanans under the law to allow their concerns to be heard and, if warranted, acted upon.
Legislators, your constituents will be enthusiastically supportive of these bills and will be immensely grateful you supported it.