If Iowa passes a law to penalize big tech companies for moderating speech on their platforms, neither Iowa Republicans nor constitutional experts would be surprised to see it immediately end up in court.
Republicans in both chambers have advanced proposals that would take tax credit benefits away from social media companies like Facebook and Twitter for “censoring” certain online content. Some have argued that major social media companies are unfairly stifling conservative speech — a claim that runs contrary to current academic research, which shows no evidence of such bias.
Law experts told the Des Moines Register that multiple legal hurdles likely await the legislation if it passes, including potential challenges on free speech rights, contract law and interstate commerce.
“I think social media companies have some strong First Amendment arguments that they will bring to challenge them, and I think the state faces an uphill climb,” said University of Iowa law professor Todd Pettys. “But even uphill climbs sometimes succeed.”
Pettys said he believes social media companies would immediately sue and seek an injunction to prevent the law from going into effect while a court examines the arguments. He also believes the companies’ arguments could be strong enough to temporarily block the law while the legal questions are considered.
Publicly, social media companies have remained relatively silent on the legislation and have not indicated whether they plan to sue if it becomes law.
But Sen. Jake Chapman, R-Adel, the floor manager for the Senate bill, said he also believes social media companies would challenge such a law. Nonetheless, he believes it will be able to withstand a challenge.
“I think we’re on good footing,” Chapman said. “Frankly, again, under our Constitution, I think we have an obligation to do what we are doing with this piece of legislation.”
Rep. Steven Holt, R-Denison, who is managing the House version of the bill, said he and his fellow Republicans are examining the legal issues and attempting to find a way to make it work. But he acknowledged that without the federal government stepping in, it’s going to be difficult, and he’s not sure yet that the bill will be complete enough to pass this session.
He said “legislation like this is” generally likely to get challenged in court.
“But I would like to know, before I bring anything to the floor, that I have confidence that what we’re doing would be legally constitutional. So those are the issues that we’re working through right now,” Holt said.
Many states trying, but experts say proposals are constitutionally risky
Iowa isn’t alone in its quest to rein in companies like Facebook, Twitter and Google.
According to the National Conference of State Legislatures, lawmakers in more than two dozen states have introduced bills to curb social media’s content restrictions or to ask that Congress repeal Section 230 of the Communications Decency Act, a federal law that protects internet companies from lawsuits over what people post on their platforms.
That 1996 law also grants exemptions from lawsuits for acting in good faith to remove content considered to be “obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable, whether or not such material is constitutionally protected.”
According to USA Today, Len Niehoff, a professor at the University of Michigan Law School, said the idea of states interfering with social companies’ editorial policies is a “constitutional non-starter.”
“If an online platform wants to have a policy that it will delete certain kinds of tweets, delete certain kinds of users, forbid certain kinds of content, that is in the exercise of their right as an information distributer,” he said. “And the idea that you would create a cause of action that would allow people to sue when that happens is deeply problematic under the First Amendment.”
Iowa law experts who discussed the bills with the Des Moines Register did not say whether the bills would be struck down but agreed that First Amendment questions, as well as other issues, likely face the legislation.
“That doesn’t mean that they’re distinctly and definitively unconstitutional, I’m not going that far,” said Mark Kende, a Drake University law professor and director of the Drake Constitutional Law Center.
Are tech companies really violating ‘free speech’ rights?
When social media companies remove accounts or demote a post in their algorithms, are they limiting a user’s First Amendment rights? Or are the companies exercising their own First Amendment rights to moderate their platforms?
Those are major questions at play when it comes to the argument surrounding the legislation, Pettys said.
Chapman and other Republicans have said social media companies like Facebook and Twitter have become a modern-day “public square,” meaning the First Amendment should be applicable to users.
The Senate bill would prohibit interference with “constitutionally protected” speech online for any user while the House bill would prevent companies from denying elected officials the ability to “access or utilize” their features, although Holt said he plans to modify the bill so it covers more Iowans. The Senate bill lays out some exceptions to protected speech such as obscene material, violent content, pornography, intellectual property and content generated by bots.
Chapman, during a committee meeting recently, cited the 2017 U.S. Supreme Court decision in Packingham v. North Carolina, a case that involved debate over the government’s ability to ban a convicted sex offender from social media. In the majority opinion ruling that sex offenders could access social media, Justice Anthony Kennedy used the “public square” analogy.
“As the Supreme Court referenced, these big tech companies, they are the modern-day public square,” Chapman said.
Pettys said the Supreme Court’s decision is nuanced: The 2017 case dealt with the government’s ability to bar someone from accessing social media, not a social media company’s ability to moderate content from its own platform. He said the case could have implications for judgment on the proposed Iowa law but likely wouldn’t be enough in itself.
“It doesn’t bring the state of Iowa across the finish line, establishing that these companies are, indeed, the public square and so must follow all the same constitutional rules that the government must follow when dealing with traditional public squares,” he said.
Kende also said that, at this point, he doesn’t believe there’s enough to fully support the “public square” argument.
“The shortest answer to that is so far, that’s just an interesting argument,” Kende said. “And it’s actually not even a bad argument. It’s just, I don’t think any courts have used that as the basis for decision yet in the free speech part of this stuff.”
Pettys said a “significant hurdle” that stands in the way of people saying they have a First Amendment right to speak on Facebook or Twitter is that those rights apply to government censorship.
If the government tells social media companies what to post, the companies could also claim a First Amendment right to decide what content they want to allow, he said.
“We did not adopt the First Amendment, or any of the other provisions of the Bill of Rights, in order to place restrictions on what private individuals can do,” he said. “It’s all about restricting the government. And so while these companies are admittedly huge and have become extremely influential in global society, they, nevertheless, do remain private companies.”
Holt said he believes the federal government should step in, similar to the way broadcast television and radio have regulations, but that this would be beyond the state’s power.
Can Iowa break existing contracts?
In the Senate, 30 Republicans are co-sponsoring a bill that would outlaw tax breaks for and contracts with companies that “censor” free speech. The bill would not only prevent new contracts but also would affect a company’s ability to receive future tax credits under current agreements. The House bill would also affect future tax credits under existing agreements.
That could have serious implications: Over the last dozen years, many of the major tech companies have established a physical footprint in Iowa in the form of sprawling data centers and warehouses. The state and local governments have entered into development contracts with Amazon, Apple, Facebook, Google and Microsoft worth hundreds of millions of dollars in incentives.
Kende said that’s another potential issue he sees with the Senate bill: It would affect existing contracts with these companies, which could conflict with the contract clause of the U.S. Constitution.
“If they have the contract, and they just try to terminate it on this basis, that would not be allowed, I think,” Kende said.
Chapman said he disagrees that the bill would infringe on contract law, saying he believes the state government has a “compelling interest” that would be enough to secure an exception under the law.
Holt said he’s still examining the contract implications and that it could depend on a case-by-case basis depending on how each existing contract is written.
How would Iowa’s bills affect multi-state commerce?
Kende said another problem could lie in a legal doctrine known as the dormant commerce clause, which deals with interstate commerce.
“In other words, if the states could interfere, then it would screw up completely the business model of these companies,” Kende said. “They’d have to sort of basically create two internets — one for 49 states and one just for Iowa.”
Chapman said he believes the state’s legislation could withstand this challenge as well. The state has authority over its own tax code and the tax credits it provides, he said, and has the right to change them at any time.
So far, Amazon, Apple, Facebook, Google and Microsoft have not publicly indicated whether they would pursue legal action against Iowa if the legislation advances.
One company, Facebook, did return a Register reporter’s request for comment on the legislation. That company provided a statement from its global head of safety, Antigone Davis, saying the legislation would make it more difficult for the platform to remove content like pornography, hate speech, bullying, self-harm images and sexualized photos of minors.
“We will continue advocating for updated rules for the internet, including reforms to federal law that protect free expression while allowing platforms like ours to remove content that threatens the safety and security of Iowans,” she said.