Thread by @AriCohn

1/ I regret to inform you that this North Dakota bill has got *even dumber* and even *more unconstitutional* by way of amendment (stay tuned for a fun fact about who is behind this later in the thread).

Here are the proposed amendments: legis.nd.gov/assembly/67-20…

https://twitter.com/AriCohn/status/1348658837222547463

2/ The bill is a complete mess. For starters, it tries to define "interactive computer services" and "social media platforms" differently, for what reason is literally anyone's guess but if it is to try to get around #Section230, it's...not going to work.

3/ The bill says that both ICSs and social media platforms may not "censor" expression or users based on viewpoint. Not only that, but also that they can't ban a user for viewpoints expressed *anywhere*.

4/ While it's nice to know that these legislators would want to make it against the law for a website to ban a murderous tyrant, the fact is that this plainly violates the First Amendment.

5/ I'm not sure how many times we need to go over this: it is unconstitutional for the government to attempt to force websites to carry expression against their will. This is settled First Amendment law, and it is so whether that decision is based on viewpoint or anything else.

6/ This bill, which is as poorly drafted as it is thought-out, tries to cabin it (not like it would matter) to things occurring within the state. But note that it applies to "receiving expression" in the state too.

7/ The net effect of that is that it applies to everything everywhere, because people in North Dakota could receive expression from anyone in the world. So if one ND psycho wants to hear from the murderous tyrant, Twitter can't ban them. These people must be on drugs.

8/ There's also this very weird section banning censorship on the basis of...living in North Dakota? What exactly is the problem they are seeking to solve here? Has YouTube cut off North Dakotans just because they live in North Dakota?

9/ Skipping some of the other glaring insanity, further down in the bill it says that it doesn't subject ICSs and social media to causes of action that they are protected from under federal law.

In other words EVERYTHING IN THE DAMN BILL, which falls under #Section230's immunity

10/ Of course immediately after saying this, the bill prescribes that an aggrieved party under the statute can sue for declaratory and injunctive relied, treble damages or statutory damages of up to $50k, and costs+attorney fees. Except again, that's all preempted by federal law.

11/ Now here's where things take a turn for the even more unconstitutional. The next section allows for the same suits and recovery for "any person who aids or abets a violation of this chapter committed by a [ICS or social media platform]."

12/ What this means is that the bill would impose liability against people for things like reporting content or accounts, pressuring sites to ban users/certain content, etc.

13/ But those things are indisputably protected by the First Amendment as well. North Dakota cannot create a private cause of action for wholly protected speech. It does not work like that.

14/ That they would even THINK about creating liability for protected expression that "aids or abets" constitutionally protected activity shows the level of *contempt*, not reverence, these numbskulls have for the First Amendment. It's downright SHAMEFUL on top of ignorant

15/ This bill would be struck down and fast. Which is ironic, given that the rep explaining the amendments said this was the version that the attorneys working with the sponsor thought would best withstand court challenges...

3:58:17 here: video.legis.nd.gov/en/PowerBrowse…

15/ Hilariously, this rep actually admits that this is confusing to him and he has no idea what it really is doing. Yea, no shit you have no idea what you're talking about. He literally says "I have no idea why they brought geographic stuff into this." It's a goddamn clown show.

16/ Rep. Jones, explaining at 4:09:12: "when an enterprise gets to be that dominant...they become like a common carrier and they have a duty to uphold the way they presented themselves as free, fair, and open...they can't censor one type of speech because of the constitution"

17/ Except they are not common carriers, and every single social media website has terms of service you agree to when you sign up. And the First Amendment quite obviously only restricts the government.

The level of civic ignorance here is truly flabbergasting.

18/ Jones at 4:10:20, talking about #Section230: "it's good in a lot of ways, because they're just supposed be a platform. They're not supposed to editorialize or pick and choose."

That is literally the exact opposite of what Section 230 says.

19/ OH MY GOD. at 4:15:15, Jones says that #Section230 has an exemption for "state law." "If there's a state law that says you cannot censor, that law is respected within 230."

That is only true if you are functionally illiterate, or if this is opposite day. What the actual fuck

20/ So who are these "attorneys" that Rep. Jones said wrote this unconstitutional bill? Why none other than @NCLAlegal (Acc. to Jones at 4:20:40), headed by Philip Hamburger who wrote an exceedingly misinformed editorial that @berinszoka and I shredded: lawfareblog.com/wall-street-jo…

21/ This is not just wayward state legislators unversed in federal/constitutional law.

This is the proposal of a clearly unconstitutional law by a group with the unmitigated chutzpah to attach "civil liberties" to their name, who should damn well know better. Shameful indeed.

22/ Although I suppose that @NCLAlegal could be forgiven, because they do say "new civil liberties," which by rules of construction could be interpreted as "to the exclusion of the existing ones."

/Fucking thread

/PS

I want to know if @NCLAlegal also thinks that #Section230 has an "exemption" for "state law."

I am still just absolutely gobsmacked over the rank idiocy of trying to allow for lawsuits against individuals who report users or content as violative of the terms of service.

Of all the many, many incredibly stupid things in this bill, that is the most offensively stupid.

I wonder what the reaction of these absolute scholars of the lowest order would be to a state law that created a private cause of action for "hate speech."

"Free speech that aids and abets someone else's protected First Amendment expression should be grounds for a lawsuit"

-@NCLAlegal, while aiding and abetting unconstitutional legislation