Featured, Free Speech, Gold Dome, Sherrie Peif, Transparency

Bill restricting online speech draws First Amendment expert’s ire; ‘At least read the Constitution’

DENVER — One of Colorado’s foremost defenders of the First Amendment, says a recently introduced bill that would regulate and restrict the speech of Coloradans or anyone doing business electronically in Colorado, will likely end up in court before the ink from Gov. Jared Polis’ signature even has time to dry.

“These people, these elected politicians, should at least read the Constitution,” said David Lane, a Denver-based attorney who specializes in First Amendment free speech law. “When they don’t understand what they are reading, they should go ask someone smarter than they are to read it for them.”

Kerry Donovan

Lane’s reaction was in reference to Senate Bill 21-132, which is being sponsored solely by Senator Kerry Donovan, the western slope Democrat who has announced her intention to challenge Rep. Lauren Boebert, R-Rifle for Congressional District 3.

The bill, Digital Communications Regulation, would create a new division of Colorado government charged with policing speech on social media platforms. The bill specifically targets and requires a fee-based registration with the state for “digital communications platforms, which are certain communications-oriented online businesses, such as social media platforms or media-sharing platforms, that conduct business in Colorado or own or operate services that are offered to Colorado residents.”

It would punish anyone not registering with the state with a misdemeanor and up to a $5,000 per day fine until they register. The board of directors would consist of the director, the state attorney general, and five members appointed by the governor.

Donovan had not returned calls for comment from Complete Colorado as of press time.

Although specifics of whom the bill would impact, how it would be managed and what the penalties would be, will be decided by the newly created division, the language of the bill appears to apply to anyone with a social media presence that disseminates news and information to Coloradans including but not limited to:

  • Broadcast news organizations
  • Print news organizations
  • Bloggers
  • Facebook
  • Twitter
  • You Tube
  • Private individuals who push news out through the use of their social media platforms

Jeffrey Roberts, executive director of the Colorado Freedom of Information Coalition, said his executive committee has not taken an official position on the bill, yet, but said they will be looking at it thoroughly, adding that the bill is problematic.

“I’m sure it’s well intentioned,” Roberts said. “Misinformation and disinformation are a huge problem. We have got to do something about that somehow, but we are concerned about any legislative act that were to impose government sanctions on First Amendment protected speech.”

Roberts said there are terms in the bill that are subjective and not defined, such as hate speech, intentional misinformation, conspiracy theories, and fake news.

“We don’t know what those mean or how those would be interpreted,” Roberts said.

David Lane

Under the new law, the regulatory division would be responsible for investigating and making determinations on charges alleging unfair and discriminatory digital communications practices.

Among the list of speech that Donovan wants regulated includes: “Practices that promote hate speech; undermine election integrity; disseminate intentional disinformation, conspiracy theories, or fake news; or authorize, encourage, or carry out violations of users’ privacy.”

In addition the bill targets: Business, political, or social practices that are conducted in a manner that a person aggrieved by the practices can demonstrate are unfair or discriminatory to the aggrieved person. Such practices, if done in an unfair or discriminatory manner, might include:

  • Practices that target users for purposes of collecting and disseminating users’ personal data, including users’ sensitive data;
  • Profiling users based on their personal data collected;
  • Selling or authorizing others to use users’ personal data to provide location-based advertising or targeted advertising; or
  • Using facial recognition software and other tracking technology.

Roberts said he would also question how the bill would stand against Section 230 of the United States Communications Decency Act, which says platforms can’t be penalized for the speech of others on the platforms.

“I’m not an expert on it,” Roberts said. “But it seems like this is possibly in conflict with that. I’m sure the sponsor wants to address this huge problem that we are facing with misinformation and disinformation, but to do in such a way that it is government restricting speech, I think is worrisome.”

Lane agreed, saying legislators need to butt out.

“Free speech is free for a reason,” Lane said. “Every so often these politicians who don’t like free speech try to limit it. But it is not the job of the government to determine what we can and cannot say, what we can or cannot read, or what we can or cannot listen to.”



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