Worst Constitutional Violations

This year’s award for Worst Constitutional Violation goes to Minnesota’s Prohibiting Social Media Manipulation Act (HF4400), which violates not only the First Amendment editorial rights of platforms, but the rights of consumers as well.

Many tech policy laws have been put on hold by the courts over the last couple of years for running afoul of the First Amendment. Florida’s anti-content moderation law was blocked by the 11th Circuit. Then a district court judge enjoined California’s age-appropriate design code for forcing additional content moderation for minors. Together, these laws violated the First Amendment by requiring tech companies to adjust how they moderate social media.

With HF4400, lawmakers have upped the unconstitutional ante by requiring that social media companies institute an entirely new editorial policy for showing users content – an editorial policy written into the bill text itself.

First Amendment Violations for Online Platforms
Minnesota’s bill, the Prohibiting Social Media Manipulation Act (HF4400), includes a new system for displaying content on a user’s feed that all social media sites must incorporate, including requirements for ranking “high quality” and “low quality” user content and prioritizing content that other “varied” users have ranked as high or low quality.

The legislation includes the requirement that a social media platform must optimize for these new rankings with no mention of how other content moderation factors, such as whether content appears to be misinformation or a post harasses another user, may be incorporated into editorial decisions.

In addition to the fact that a content moderation algorithm written by a lawmaker with no experience moderating content will probably create a worse experience for users, the new law is glaringly unconstitutional.

The First Amendment, in addition to protecting our right to speak, also protects against the government forcing speech upon us, or what is known as compelled speech doctrine. Under the Supreme Court’s reading of the First Amendment, the government cannot force Americans to salute the flag or require a newspaper to print a story.

Similarly, a government can’t force social media platforms to publish a customized feed of content based on an algorithm that politicians have concocted. In fact, politicians deciding exactly how and what content users see when they log into social media should set off First Amendment alarm bells for all Americans.

First Amendment Violations for Users
HF4400 does not stop there, but goes on to thoroughly violate the First Amendment rights of users as well.

The legislation includes time limits on the length of time users can spend on a social media platform. To be clear – the time limits that the bill puts in place do not just apply to minors but to adults as well.

Where the First Amendment is concerned, there is no difference between an op-ed in a newspaper and an activist’s post on Instagram. The government cannot, within the bounds of the Constitution, put a cap on how much speech any person can consume.

There are practical questions that the account holder daily limits in HF4400 raise as well. There are, for example, no exemptions for people who derive their livelihood from working on social media. Nor are there exemptions for accounts that issue public health and safety information on a social platform. And why new account holders who’ve recently joined a social platform face additional restrictions under the bill remains without explanation.

But rest easy Minnesota. While HF4400 threatens to worsen users’ online experiences, it’s also the most unconstitutional bill we’ve seen introduced this year. Should the legislation somehow make its way through the Minnesota legislature, we’re certain it will join the ranks of NetChoice v. Yost, NetChoice v. Bonta, and Moody v. Netchoice, to be struck down in the courts.