Earlier this month, we noted that, to close out its session, the Utah legislature decided to pass
two separate blatantly unconstitutional bills. One requiring porn filters on internet-connected devices, and the other that tried to
overrule Section 230 (something states
can’t do) and require all “social media corporations” to employ an “independent review board” to review content moderation decisions. It also says that social media companies must moderate in an “equitable” manner (whatever that means).
We went through all of the reasons why the bill was unconstitutional, as did others in Utah. In response, the bill’s sponsor, Senator Michael McKell, gleefully told a local TV news station that he looked forward to wasting Utah taxpayers’ hard earned money by defending it in court (he didn’t say that it would be wasting the money — that’s just us noting that it would be throwing away their money since the law is so clearly unconstitutional).
Thankfully, Utah Governor Spencer Cox (who happens to be Senator McKell’s brother-in-law) has decided to veto the bill — his very first veto (as we noted earlier, he chose to sign the other unconstitutional bill about porn filters).
Oddly, Cox’s office released two separate statements regarding the veto — only one of which notes that the bill was likely unconstitutional, while the other one seems to act like the bill just needs a few technical tweaks. It’s almost as if he’s trying to have it both ways and address two different audiences with two very different statements. The official veto statement makes it clear that the bill has serious constitutional issues:
Whatever course of action we take to protect online speech should seek to fully uphold the values enshrined in the First Amendment. While it is clear that something must be done, I believe that S.B. 228 raises significant constitutional concerns. And while I am proud that Utah is leading the effort to protect individuals’ speech on the internet, I believe we will be well served to continue further coordination with our sister states to ensure faire access to the nation’s largest public square.
Um, yeah, no. The government does not get to force anyone to host anyone’s speech. That’s not how it works. At all. The very notion of it is against the principles of the 1st Amendment.
The other statement, that Senator McKell himself posted to Twitter (after whining about the fact that his brother-in-law vetoed his bill) pretends that there are real serious issues involved in all of this, rather than silly, unconstitutional performative nonsense.
That statement doesn’t even mention the constitutional issues and instead suggests that there were merely “technical issues” that got in the way (apparently some in Utah think the 1st Amendment’s prohibition on compelled speech, as well as the Constitution’s Commerce Clause are merely “technical issues”).
Gov. Spencer Cox vetoed S.B. 228 Electronic Free Speech Amendments, with consent from the Senate President, Speaker of the House and bill sponsors. After conversations with the legislative and executive branches, this action was jointly determined as the best path forward due to technical issues. Censorship by tech companies is a serious concern, and this action will not hinder nor prevent Utah from finding the right policy solution.
“The sponsors of this bill have raised valid questions about the impact social media platforms can have on public discourse and debate,” said Gov. Cox. “Our country continues to grapple with very real and novel issues around freedom of speech, the rights of private companies and the toxic divisiveness caused by these new forms of connection, information and communication. While I have serious concerns about the bill, I appreciate the willingness of the bill’s sponsors to continue to seek a better solution. Utah must be a leader in this space and I look forward to engaging with legislators and social media companies to address these legitimate concerns.”
S.B. 228 had made significant headway and elevated Utah’s position in conversations with big tech corporations. Utah policymakers along with the governor will work closely with stakeholders to ensure all Utahns have an equal opportunity to exercise their First Amendment right.
Um, yeah, you see, the 1st Amendment blocks the government (including the government of Utah) from making laws that impact individuals’ rights to free expression. The government cannot seek to force private companies to host speech. So the very idea that they need to step in to make sure that “Utahns have an equal opportunity to exercise their First Amendment right” is nonsense.
Even more bizarre is that Cox allows his brother-in-law, who wrote the bill, to put in a completely nonsensical statement into the press release claiming (laughably) that it’s actually the content moderation decisions of private companies that must violate the 1st Amendment:
“I appreciate the commitment from stakeholders who have agreed to work with the Legislature to craft a better solution that will increase transparency within social media corporations,” said Sen. Mike McKell. “Censorship practices are un-American and likely unconstitutional. In Utah, we defend the right to freely express opinions and views, regardless of political or religious affiliation. The outcome of S.B. 228 is not ideal; however, the issue of free speech and online censorship remains a priority and policy will continue to be refined throughout interim.”
That’s not how any of this works. You don’t get to force private companies to moderate the way the government wants them to moderate. That is what’s unconstitutional. Utah: elect better people who will actually stand up for your constitutional rights, not try to demolish them while pretending that their attacks on the Constitution are no problem at all.
McKell further notes that as soon as the legislature is back in session he’ll introduce a new version of his unconstitutional bill. I will take a wild guess and predict it will be equally unconstitutional. Especially since almost everyone involved in this ridiculous process keeps saying the same stupid things:
“Free speech is one of our most cherished American values and essential to democracy,” said President J. Stuart Adams. “With the rise of social media, the issue of censorship has become increasingly prevalent, and the need for corporation transparency has proven necessary. While I support the concept and ideas of S.B. 228, after conversations with Gov. Cox, Speaker Wilson Sen. McKell and Rep. Brammer, we decided continuing the discussion regarding online censorship will be the most productive path forward. Together as Americans, we must ensure the right to speak freely remains intact, and I look forward to addressing this issue in the near future.”
Everyone has the right to speak freely. What they do not have the right to do is to force others to host their speech or to tell them how they can make editorial and moderation decisions. That is an attack on their 1st Amendment rights. It would be nice if elected officials in Utah could understand this fundamental point behind the 1st Amendment. Tragically, that seems unlikely.
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