SB 153: Hate Speech Is Arbitrary Personal Perception, So Let’s Ban Twitter Bans!

If you thought the defeat of litterbug Senate Bill 54 meant the end of ban bans in the 2020 Session, think again. On Tuesday morning, Senate Commerce and Energy takes up Senate Bill 153, the Twitterbug ban ban.

Senator Jeff Monroe, Pierre’s plastic garden poisoner and river litterer extraordinaire, apparently felt sorry for Shad Olson and decided to write a bill allowing nasty jerks to sue social media websites than ban the for nasty jerkiness. The bill starts by putting Shad Olson’s mock quotes around “hate speech” into state law:

”Hate speech,” a phrase concerning content that a person arbitrarily finds offensive based on that person’s personal moral code [2020 SB 153, Section 1(2), as introduced 2020.02.04].

Wow—we can’t even get to the heart of this bill without Senator Monroe saying something stupid. Hate speech is largely protected by the First Amendment, but it’s not what Monroe defines here. Hate speech is not some arbitrary, hopelessly subjective figment of some liberal snowflake’s imagination. We can define hate speech pretty objectively as “any form of expression through which speakers intend to vilify, humiliate, or incite hatred against a group or a class of persons.”

Hate speech doesn’t depend on my taking offense or my personal moral code. If you’re shouting racial epithets or saying women are too dumb to be President or telling homosexuals they don’t belong in South Dakota, that’s hate speech. You get to say those things, but you don’t get to define away the objective hatefulness of your speech as some arbitrary and unjustifiable offense taken by some silly others. Your hate speech marginalizes those others; your mock-quote de-definition of “hate speech” only further marginalizes those others and thus contributes to your hate speech.

But SB 153 isn’t just about defining away hate speech as the hated people’s fault. SB 153 is about allowing nasty jerks who get banned from Twitter, Facebook, YouTube, or any other social media platform with more than 75,000,000 users—that number is in the bill’s definition of “social media website,” so Dakota Free Press can still ban whomever it wants—to sue those platforms in South Dakota court for censoring their religious or political speech specifically or for using an algorithm that blocks their speech. SB 153 says nasty jerks who prove to a South Dakota judge that Twitter blocked them for “hate speech” (again, really work those mock quotes, honk that crybaby voice) can claim civil damages of $75,000 for each “purposeful censoring or suppression of the social media user’s speech.” So if you’re a smart nasty jerk and you see that your post about Muslims shooting up Aberdeen doesn’t stick on Facebook, you should try posting at least thirteen more similar messages, watch each one fail, and then sue for a cool million.

SB 153 excludes censorship for speech that calls for immediate acts of violence. SB 153 doesn’t let you sue if Twitter blocks you for porn or obscenity—Twitter can still block you if you refer “those f***ing n*****s,” so you Trump brownshirts will need to tone it down and refer to them as “those filthy n*****s.”

SB 153 also refuses standing to “inauthentic” sources (you mean like everybody who claims to be a faithful Christian but votes for Trump? O.K., let’s write “inauthentic” into law!) speakers involved in “false impersonation” (um, all impersonation is false, right?) or enticing criminal conduct. Minors bullying minors can’t bring an SB 153 suit for getting banned by Twitter (but adults bullying minors can? I guess the Legislature gets a pass to keep harassing children), nor can nasty jerks whose speech gets blocked by another user of the platform. SB 153 would thus be no help to the sad sack suing Stace Nelson for blocking him on Facebook… but it does raise the interesting question of whether Jeff Monroe’s favored hate speakers will be able to sue a platform that promotes users to “super-users” with the power to moderate certain discussions and remove offensive content or creates an algorithm that puts a user in the corner if a certain number of users flag his speech (yeah, his speech, because nine times out of ten, it’s some 4chan loser compensating for masculine insecurities) as hate speech.

Even though the Twitterbug lawsuits SB 153 envisions would be civil cases, Monroe’s original posted version of the bill proposes to enlist the Attorney General to bring lawsuits on behalf of censored South Dakota social media users. But then someone must have reminded Monroe that (a) SB 153 proposes civil lawsuits, and (b) no one wants Jason Ravnsborg bumbling in and losing their case, not even the Legislature. Monroe has an amendment in the chute for committee Tuesday to strike that legally and strategically dubious A.G. section from the bill.

The core problem with SB 153 is not Jeff Monroe’s dullardry or poor talent for writing bills (though those shortcomings deserve ample derision). The core problem is that SB 153 attempts to apply First Amendment rights to private publications. Twitter and Facebook are not the government (thank goodness). Like newspapers, they can choose not to publish objectively recognizable hate speech, baseless accusations, commentary criticizing their wealthy executives and sponsors, things that are spelled poorly, or just comments they find asinine. Twitter and Facebook don’t spend billions of dollars just so you can show what a big Nazi or horse’s ass you are. If Senator Monroe wants to argue that big social media platforms are public accommodations (he’ll find some help for that position in the jurisprudence developing around the Americans with Disabilities Act), he and the slobbering brownshirts he would protect may run into a civil rights buzzsaw: if recognized as public accommodations, Twitter and Facebook may have an obligation to do more to protect everyone else from white supremacists and other hate speakers whose bullying and intimidation deprives targeted minorities of unimpeded use of those public accommodations.

Senate Bill 153, the Twitterbug ban ban, is first up for Senate Commerce and Energy after everyone gets back from Presidents’ Day on Tuesday, 10:00 a.m., in Capitol Room 423. Let’s pay attention to how many out-of-state conservative snowflakes come to cry about getting banned from Twitter for being nasty Nazis… and let’s pay attention to the questions and commentary offered by the two members of the committee best equipped to deal with the legal questions of SB 153, lawyers Lee Schoenbeck and Craig Kennedy.