Arizona lawmakers want special social-media treatment of candidates

PHOENIX — State lawmakers are poised to enact a measure designed to regulate how national and international social media platforms operate in Arizona.

Politicians would get special treatment.

Senate Bill 1106 would put into state law that once people become candidates for any public office, they cannot have their posting rights taken away — pretty much no matter what they say, truthful or otherwise. Only violations of the federal Communications Decency Act would result in loss of privileges.

Social media sites that take down a candidate’s posting could find themselves facing civil fines of up to $250,000 a day.

“It basically speaks to freedom of speech,’’ said Sen. Wendy Rogers, R-Flagstaff, acknowledging that it would give anyone who declares as a candidate immunity against having posts removed that would not exist for any other Arizonan. She told the House Committee on Transportation and Technology that special status is justified.

“This legislation seeks to reinforce the First Amendment, especially for political speech, which, I ... from personal experience, can tell you, is a higher bar than even regular speech,’’ Rogers said.

The measure — already approved by the state Senate and awaiting only a final House vote — has gotten this far over the objection of NetChoice, which describes itself as a “right-of-center trade association’’ for social medial platforms.

Its lobbyist Amy Bos chided Republican lawmakers for seeking to tell private firms — the internet companies — what they have to post, even if it violates the terms of service that users agree to when signing up.

“The act compels online businesses to host content they otherwise removed, or restrict even highly objectionable content that is not appropriate for all viewers,’’ Bos said. “And it gives special treatment to certain speakers like political candidates, even ones who spread unlawful, violent or hateful content.’’

‘In effect, a monopoly’

But Rep. Matt Gress, R-Phoenix, said he isn’t necessarily buying the idea that social media sites are truly private businesses that should be permitted to unilaterally decide what to allow to be posted and what to remove. He suggested that a more apt comparison would be to see these firms as utilities that can be regulated.

“At what point does a business become, in effect, a monopoly subject to the attention of the state for additional regulation?’’ Gress asked.

He questioned Bos about whether she is concerned that a company like Twitter, with about 450 million users, can “remove the voice of elected officials, basically ‘disappearing’ them, not unlike what China does to real people.’’

She countered that telling Twitter and other companies they have no right to remove any content posted by a candidate “is concerning as well. So it’s kind of a balancing act there.’’

Bos emphasized that the legislation would not give the right to post anything to all Arizonans.

“It gives special treatment to certain speakers like political candidates, even ones who spread unlawful, violent or hateful content,’’ she said.

Gress, however, suggested they should get special treatment because it’s necessary that constituents get to hear from and interact with their elected officials.

Bos countered there are a lot of ways beyond social media for candidates to reach constituents, including newsletters and town halls.

She also questioned the legality of the proposal, saying a federal appeals court struck down a nearly identical law from Florida.

Enforcement issue

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The merits and legal questions aside, there’s also the question of how Arizona would enforce the measure if it is enacted.

Rep. Leezah Sun, D-Phoenix, noted that the social media companies are not based in Arizona. That appears to limit the ability of the state to do anything if an out-of-state operation decides that it will no longer allow posts from an Arizona politician, she said.

Rogers brushed aside the concern.

“We as a state need to take our plenary power back,’’ she responded, saying it is the role of lawmakers to protect the rights of Arizonans.

“So we as a state, according to my bill, have the right to free speech as candidates,’’ Rogers said. “And if you’re going to come into our state and do business on the internet with social media and you violate what these tenets in this legislation are, you’re going to hear from us as a state.’’

Sun remained unconvinced, citing the Interstate Commerce Clause of the U.S. Constitution, which gives Congress the power “to regulate commerce ... among the several states.’’ She said sites like YouTube and Twitter remain firmly within federal control.

Not so, insisted Rogers.

“As it pertains to Arizona, we can say ‘yes’ or ‘no’ to them asserting a clampdown on our speech in our state,’’ she said. “If they want to do business with us in our state and they suppress free speech of a candidate in our state, that will not be legal.’’

‘The Twitter files’

Driving the issue is the perception by some that social media sites have a liberal bent, resulting in the censorship of conservative voices, sometimes at the behest of government officials.

Rep. Neal Carter, R-San Tan Valley, told of a constituent whom he said was banned from Nextdoor, an app that creates localized networks for people to exchange ideas and to buy and sell items. The reason, Carter said, was the posting of a verse from the Book of Jeremiah that is cited by abortion foes: “Before I formed you in the womb I knew you.”

“That’s reprehensible,’’ said Rogers.

Rep. Justin Heap, R-Mesa, had his own example, citing the “Twitter files.’’

These were documents released by Elon Musk after he bought the company. Some reporters who reviewed the files said they showed circumstances under which Twitter had removed posts or lowered their visibility, often at the request of government officials and Democrats.

They also shed some light on the decision by Twitter to suspend the account of then-President Donald Trump in the days after the Jan. 6, 2001 riot at the Capitol amid concerns there was “the risk of further incitement of violence.’’

“Do you acknowledge that the material that’s come out from the Twitter files and various things have indicated that the government is dictating to the social media platforms what they should ban, what they should remove?’’ Heap asked Bos. “Don’t you find that dangerous?’’

“I think what has come out with the Twitter files is very concerning,’’ she responded.

But Bos told lawmakers that while SB 1106 was introduced to promote free discussion online, “its means violate the well-established First Amendment to editorial discretion.’’