Tech Industry Targets New Hampshire Social Media Censorship Bill

A Democratic bill filed in New Hampshire that would treat social media platforms as common carriers and require them to carry speech violates the First Amendment, tech industry associations told New Hampshire’s House Judiciary Committee during a hearing Thursday.

Introduced by Rep. Peter Schmidt (D), HB-320 would limit online platforms’ ability to moderate content and expose them to a private right of action, allowing users to sue if they believe their viewpoints are being censored. The bill applies to social media platforms with 50 million monthly users. Schmidt, who isn’t a Judiciary member, didn’t comment Thursday.

HB-320 mirrors a law passed in Texas that the Supreme Court is reviewing (see 2212150057), said NetChoice Counsel Chris Marchese. HB-320 and the Texas law are unconstitutional because they violate the platforms’ First Amendment right to carry and block speech, he said. The court is expected to rule Friday on the tech industry’s request for a hearing, he said. The high-level concern in New Hampshire is that if you want to protect the First Amendment, you do so by preventing violations, not violating the First Amendment yourself, he said.

HB-320 would undermine content moderation practices that keep users safe from hate speech, harassment, bullying, scams, spam and other harms, said Chris Gilrein, TechNet executive director-Northeast. If the bill becomes law, platforms would take a hands-off approach to avoid legal liability and litigation, he said, flooding the internet with objectionable content.

Rep. Dan Hynes (R) noted the bill language allows platforms to remove content that's “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable expression.” Platforms like Facebook shouldn’t fact-check and block subjective opinions, he said, calling it a narrow bill that would stop platforms from “deciding the truth.”

Former New Hampshire Rep. Neil Kurk (R) testified in favor of the bill. If there’s no free communication on the internet, democracy fails, he said, answering questions clarifying various aspects of the bill. Rep. Marjorie Smith (D) commented on the bill’s private right of action, asking if enforcement would fall entirely on the courts. The provisions are enforced by the individual suing the platform, so there would be an additional burden on the courts, said Kurk.

Rep. Sheryl Anderson (D) asked why the bill wouldn’t apply to platforms with a smaller user base. Platforms have to serve a large number of people to be considered a “common” carrier, said Kurk. Rep. Eric Turer (D) said he has concerns about state entities designating common carriers. He said his understanding is that at the federal level, this is established by an oversight board or similar body. The idea of this bill is to tread lightly and only regulate viewpoint discrimination, a small but significant issue, said Kurk.

Rep. Tim Horrigan (D) questioned whether the bill respects platform business models and sites’ ability to turn a profit. This doesn’t affect the business model, said Kurk: They can continue business as usual as long as they refrain from blocking viewpoints.

Consumers and constituents don’t support such a law, testified Alain Xiong-Calmes, Chamber of Progress director-state and local government relations, Northeast. The chamber’s national polling shows 67% of voters say platforms should be able to block violent and offensive content, and a majority of voters want more content moderation, he said. A bill seeking to “limit private companies’ control over what they host online would be a danger to internet users and democracy if they were allowed to be enforced,” said Computer & Communications Industry Association State Policy Director Khara Boender.