Hold social media companies to founding principles of free speech

In the mid-20th century, California was the birthplace of a free speech movement that swept the nation. At the beginning of the 21st, our state has spawned just the opposite: a new era of censorship with a global reach.

If this was not clear already, recent events have removed all doubt. California companies such as Facebook and Twitter systematically suppressed discourse relating to one of the most important topics in modern history: COVID-19’s origin. For more than a year, self-appointed truth experts at these companies promptly deleted any suggestion that the virus came from a lab.

Only now that the Biden administration acknowledges this might be what happened is such speech no longer banned. There has perhaps never been a more compelling example of the evil of censorship: Facts of the utmost importance to every person in the world were snuffed out to advance the preferred narrative of the Chinese Communist Party.

The evil of censorship was acutely understood by America’s founders. From their study of history, they knew it is a potent tool of political repression and that even well-intended censors — because they are not oracles — can suppress truth. That’s why they gave us the First Amendment.

Of course, the First Amendment does not apply to private entities. But there is growing evidence that social media giants have become de facto state actors. For instance, we’ve recently learned that Facebook removed dozens of elections-related posts at the behest of California’s secretary of state. This kind of state-induced censorship may well be actionable, subjecting what would otherwise be private conduct to the First Amendment.

But we believe there is another path forward based on our state’s constitution. Article I, section 2 of the California Constitution provides: “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right.” Unlike the First Amendment, this is more than a protection against government interference; it is an affirmative guarantee of individual liberty. The California Supreme Court has explained this state constitutional guarantee as “more definitive and inclusive than the First Amendment.”

The significance of this distinction was made clear in the 1980 case of Pruneyard Shopping Center v. Robins. Pro-Israel student activists inside a shopping center filed a lawsuit after being kicked out by mall security. The First Amendment was no help, as the center was privately owned. But our state Supreme Court held that the petitioners were protected by the free speech guarantee of the California Constitution, finding the shopping center to have become a kind of public square.

It is time to extend this principle to social media, the 21st century’s new public square. Just as shopping centers supplanted town squares in a way that brought an attendant obligation to allow free speech on their premises, so it is with the likes of Facebook and Twitter. These companies have captured such a large swath of discourse that our constitutional guarantee of free speech will be a dead letter unless it is extended to their platforms.

We have introduced Assembly Bill 1114 to do just that. The main objection to our legislation is that section 230 of the federal Communications Decency Act gives social media companies sweeping liability protections for removing content. However, no court has held that section 230 was meant to preempt existing state constitutional rights. And the U.S. Supreme Court recognized in reviewing Pruneyard itself that a state may “adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution.”

California started this profoundly un-American era of censorship. Now we can bring it to an end by adapting the principles of our nation’s founding to the realities of the digital age. The future of free speech – and perhaps stopping the next pandemic – may depend on it.

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Assemblyman Kevin Kiley has also written about banning PG&E from giving campaign contributions, and Assemblyman James Gallagher has written about updating PG&E’s infrastructure.