Someone must have neglected to give State Senator and Congressional hopeful Kerry Donovan the memo: George Orwell’s 1984 was intended as a warning against authoritarianism, not an instruction manual for politicians.
Thankfully, Donovan’s Senate Bill 21-132 regarding “digital communications regulation” attracted only a single legislator with sufficient contempt for the Bill of Rights to sign on as sponsor—Donovan herself. Those who follow the legislature do not expect the measure to pass.
Still, the mere fact that Donovan introduced this abomination demonstrates that voters of Colorado’s Third Congressional District should not trust her to serve in the United States Congress. Despite not living in the district, Donovan announced her campaign against Representative Lauren Boebert, the Republican who beat Scott Tipton in last year’s primary and then Diane Mitsch Bush in the general election.
Given Donovan’s high-profile campaign, and given her leadership position as president pro tempore of the state senate, I have to wonder why no other Colorado Democrat heard about this horrible bill and talked Donovan out of running it. Apparently Democrats are now so confident in their dominance of state politics that they feel Democrats can run straight-up fascist legislation—as Donovan’s bill certainly is—and pay no political price for it.
Did Donovan and her fellow Democrats not expect such reactions as that by David Lane, Colorado’s great civil-rights litigator? Lane suggested that Donovan doesn’t understand the Constitution and “should at least read” it. Lane, in reflecting on the bill, told Complete Colorado, “Free speech is free for a reason. 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.”
Law professor Eugene Volokh summarizes the bill, which would create a “digital communications commission”—Colorado’s very own Ministry of Truth—to investigate Thoughtcrime pertaining to the publication of views “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.”
As Volokh notes, “None of these terms are defined in the bill. And the bill is all about suppressing the ‘unfair or discriminatory’ speech.” If the Ministry of Truth “determines that the respondent engaged in an unfair or discriminatory digital communications practice,” the bill says, “the commission may issue and cause to be served on the respondent an order requiring the respondent to cease and desist from the practice and to take action that the commission orders.” (The bill does define certain terms; Volokh’s point is that a number of key terms are completely ambiguous.)
Bluntly, Donovan is calling for government censorship of political speech.
Volokh does not even get into all the nasty details of the bill. Donovan also wants to force “communications platforms” to pay a fee to register with state bureaucrats, on pains of criminal prosecution. From the bill’s summary: “On an annual basis and for a reasonable fee determined by the commission, the division shall register 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. A digital communications platform that fails to register with the division commits a class 2 misdemeanor, punishable by a fine of up to $5,000 for each day that the violation continues.”
Donovan’s Ministry of Truth can target “a digital communications platform” that merely “allowed”—another ambiguous term—”a person to engage in one or more unfair or discriminatory digital communications practices on the platform.”
Donovan’s bill is so stupidly written that it does not even distinguish true conspiracy theories from false ones. So, technically, under her own bill, Donovan would be forbidden to claim that some Trump followers conspired to assault to U.S. Capitol on January 6, which they obviously did. News journalists would be forbidden to report criminal conspiracies prosecuted in the courts. (Those confused about the difference between theories of actual conspiracies and conspiracy mongering should listen to my discussion with historian Robert Alan Goldberg, who has spend much of his professional career researching American conspiracism.)
Donovan’s bill also authorizes individuals to “file a civil action in district court alleging an unfair or discriminatory digital communications practice”—because that provision never could be abused!
Of course the courts would never allow Donovan’s bill to stand. As Colorado Peak Politics rightly notes, “The bill doesn’t stand a snowflake’s chance in Hell of surviving a First Amendment challenge in the Supreme Court.” The problem here is not that Donovan’s bill poses an immediate threat to the First Amendment. The problem is that someone elected to legislative office would even imagine such a monstrosity might fly.
There are, of course, a number of legitimate concerns reflected in Donovan’s bill. Those concerns that should be addressed by law already are. For example, cyberstalking is illegal in Colorado. People can already sue over libelous claims. And private social media companies, exercising their own First Amendment rights, already may, and frequently do, limit what users post.
But it is simply not government’s legitimate business to censor speech that bureaucrats deem to be false, fake, discriminatory, or otherwise harmful. Unless we’re talking about actual incitements to violence, criminal harassment, or libel, people have a right to say or write whatever they want, using their own resources or via consensual arrangements with others, however wrong or crazy or dangerous their views may be. We cannot protect speech we favor without also protecting speech we disfavor. The solution to bad speech is good speech.
The only alternative to free speech is authoritarianism. Censorship is inherently authoritarian, and it tends to promote ever more authoritarianism as the censors control speech for their own ends.
I’ve come to expect a great deal of legal garbage from the Democrat-controlled legislature (along with an occasional worthy reform). It is indeed tragic that the GOP self-destructed to the point where Republicans no longer can effectively check the left’s excesses in this state. But Donovan’s bill is worse than the usual; it is a shocking assault on our liberties.
Whatever you think of Boebert—I myself have been quite critical—it is obvious that Donovan has no business serving in the United States Congress.
