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Social media regulation: Can answers be found in Utah?

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A conference worker at Facebook’s annual F8 developer conference in San Jose, California.

In this April 18, 2017, file photo, a conference worker passes a demo booth at Facebook’s annual F8 developer conference in San Jose, Calif. Over 1,300 legislators and policy experts from across the U.S. will be coming to Salt Lake City next week to discuss big tech, social media censorship and misinformation.

Noah Berger, Associated Press

The national debate around Big Tech, social media censorship, misinformation and political bias is coming to Utah.

And it’s a conversation that will likely force conservatives to confront what to do when their free market, limited government and free speech principles clash.

“I feel like this is the issue of our time,” Bill Meierling, chief marketing officer and executive vice president for the American Legislative Exchange Council, recently told the Deseret News and KSL editorial boards.

For its “entire existence,” ALEC has been a “major proponent of free speech, Meierling said, but the debate gets complicated when it delves into social media censorship and what role government should or shouldn’t play to regulate tech companies.

Over 1,300 legislators and policy wonks from across the U.S. will be coming to Salt Lake City this week for an annual national conference hosted by the free market-focused American Legislative Exchange Council, which facilitates discussions for model legislation for state lawmakers across the nation. The three-day, pro-federalism, pro-limited government conference will include workshops on dozens of topics for legislators — but the workshop focused on social media regulation is likely to churn some of the most heated debate.

Hot debate at federal level

Federal-level conservatives including Utah Republican Sen. Mike Lee have been vocal critics of Big Tech companies and what they see as a widespread effort to unfairly suppress conservative voices and ideas and wield market power to limit competition.

But from the left, some politicians including Democratic Sen. Elizabeth Warren believe social media companies like Google, Facebook and Twitter haven’t been doing enough to stem misinformation, hate speech and extremism.

President Joe Biden said earlier this month platforms like Facebook are “killing people” due to COVID-19 vaccination misinformation, because the “only pandemic we have is among the unvaccinated.” Biden later tempered his comment, saying he hoped social media giants wouldn’t take it “personally” while expressing hopes Facebook will do more to fight “the outrageous misinformation” about COVID-19 vaccines being spread on its platform, The Associated Press reported.

Earlier this year, Utah lawmakers tried to tackle the social media censorship policy question. But Gov. Spencer Cox in March vetoed their effort to stop perceived censorship practices by social media companies. Cox cited technical issues with the bill, while critics thought the proposal could be deemed unconstitutional in court.

SB228 sought to help hold social media platform operators responsible and legally liable for unfairly applying moderation rules stipulated in their terms of use agreements.

At the time of his veto, Cox said the bill’s sponsors raised “valid questions” around social media platforms and how the country “continues to grapple with the very real and novel issues around freedom of speech, the rights of private companies and the toxic divisiveness caused” by social media. But the governor also expressed “serious concerns” about the bill while thanking the bill’s sponsors for continuing the conversation to “seek a better solution.“

Workshop expected to hit topic from all sides

Still no solutions are in sight. And other states have tried. Last month, a federal judge cited free speech rights when he blocked Florida’s controversial social media law that would have allowed the state to penalize social media companies when they ban political candidates.

Leaders from the council hope the conference that begins Wednesday will produce solutions.

“Beyond our work broadly on free speech in general and the right of people to dissent and disagree, I believe that content moderation and the platform versus utility issue is one that free-market focused legislators routinely struggle with. And that’s there isn’t an answer yet,” Meierling said.

That’s the debate that will likely play out Wednesday during the workshop titled “Tech Talk: Content Moderation on Social Media Platforms.” Meierling said representatives from Facebook, Google, Twitter and NetChoice, a trade association that represents the companies in Washington, are expected to attend the workshop, which he said will mostly be a “listening session” where the tech companies’ representatives will talk about their platforms and content moderation, and listen to legislators’ concerns.

“You’re going to hear people say, ‘Break them up.’ You’re going to hear people who say, ‘Regulate.’ You’re going to hear people who say, ‘It’s their right to do what they want on the platform they own.’ And you’ll hear absolutely everything in between,” Meierling said.  

While his group is “often viewed as a monolith” made up of conservatives, Meierling said there’s “incredible texture and nuance to people’s perspectives on those issues. And that will be on full display at this workshop.” 

As the debate around social media moderation has come to the forefront over recent years, it’s become an increasingly challenging conversation for conservatives to confront, said Jonathan Hauenschild, director of ALEC’s Communication and Technology Task Force.

“There is this tension between the state legislators, their desire to promote a free market and recognize the role of innovation ... and also this tension where they perceive that the tech companies really aren’t giving conservatives or Republicans a full voice,” Hauenschild said.

Utah Senate President Stuart Adams, R-Layton, was elected president of the American Legislative Exchange Council this year. He, too, is hoping the conference will lead to productive conversations with social media giants — conversations that he said haven’t made much headway, at least in Utah, since Cox vetoed the Legislature’s stab at the issue.

“I’ve been very disappointed, quite frankly, in their effort (after the veto),” Adams said. “They kind of disappeared a little bit.”

“But we would like to have more interaction,” Adams added, calling the issue a “challenge” for free-market minded legislators.

“You’ve got institutions that are very powerful, and yet ALEC is (for) limited government and free markets,” Adams said. “So how do you want to regulate someone if you don’t believe in regulation? So it’s going to be a tough issue for us to deal with.”

The hope is by Utah’s next legislative session in January 2022, “we might be able to have something that has some semblance of functionality,” Adams said.

“It’s a big issue,” the Senate president said. “We’ve got to figure out a way to handle it.”

Some think it’s best for states to be hands off

But perhaps there’s a good reason states are struggling to find answers to the social media debate. The issue of social media and content moderation are too complex and too big for states to legislate, said James Czerniawski, tech and innovation policy analyst for the Libertas Institute, a free-market think tank in Utah.

“There are no borders on the internet,” said Czerniawski, who argues the U.S. should continue its “light touch” approach to the digital realm, and let social media giants make their own decisions on content regulation.

“Trying to craft a legislative proposal ... I think is extremely difficult and also why you’re seeing it on the federal level being so difficult too,” Czerniawski said. “There’s this rub that neither side really has the right vision for what’s going on. If you ask conservatives, Facebook is moderating too much. And if you ask liberals, they say they’re not moderating enough and that they’re ‘killing people.’ The thing is, neither is true. It’s a moving scale.”

Moderating content is easier said than done, Czerniawski said, and “the fact that they do as much as they can is already quite amazing.”

To Czerniawski it’s “unfortunate but unsurprising,” that social media regulation is one of the topics up for discussion at ALEC’s conference. If Libertas Institute had its way, state legislators would keep their hands off, but he said it’s not surprising “given the fact conservatives have been yelling about this for the past five years, give or take.”

However, Czerniawski also said it’s perhaps important the group is “having this conversation because, at the end of the day, legislators need to understand the internet, platform and content moderation is inherently complex ... and you have to be careful.” Legislation can have unintended consequences that could harm free speech and how the U.S has benefited from its light touch on the internet.

“I don’t know what to expect from this panel, but I’m looking forward to it,” he said. “There’s a lot that I think we can hopefully (discuss) in a good heart-to-heart conversation. ... (Tech companies) were founded on free speech principles. I think they want to try to do what’s best for their communities, but that’s a really hard thing to balance given the current political climate.”