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Jack Greiner Published 9:42 p.m. ET Jan. 19, 2021 | Updated 10:10 a.m. ET Jan. 20, 2021

Matt Schruers, the president of the Computer & Communication Industry Association says Facebook and Twitter are simply "exercising their own speech rights" in banning Trump from their platforms. (Jan. 11) AP Domestic

Two state legislators in Kentucky have recently proposed legislation in response to Twitters decision to ban President Trump from its platform.

Senate Bill 111, entitled the Stop Social Media Censorship Act, co-sponsored by Sens. Robby Mills and Phillip Wheeler, would make a social media platform liable for civil damages if that platform deletes or censors the users religious speech or political speech.

Jack Greiner, attorney for Graydon(Photo: Provided, Provided)

The proposed bill will no doubt appeal to Kentuckians offended by Twitters decision, but it wont sustain an inevitable legal challenge, assuming it is actually enacted.

I try to keep my column to a word limit, so I wont be able to detail every legal defect with this bill.Ill just try to hit the highlights.

Before we even get to the glaring constitutional defects, lets discuss the bills title. Censorship is when the government steps in and prohibits a citizen from uttering an unpopular thought. Its not censorship when a private entity sets rules for engagement and enforces them, even against a sitting President. So, the title itself is a misnomer.

The bill also ignores the concept of preemption.Very simply, under the supremacy clause of the United States Constitution, when a state law conflicts with federal law, the federal law prevails.In this case, Section 230 of the federal Communications Decency Act provides plainly that:

No provider or user of an interactive computer service shall be held liable on account ofany action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected;

So the proposed legislation blatantly contradicts federal law. Its preempted and that is not even a close case.

And while the bill ostensibly seeks to advance the First Amendment interests of would-be Twitter users, it actually violates the First Amendment in a fundamental way.

When we think of the First Amendment, we typically focus on how it prevents the government from prohibiting what citizens can say. And it surely does that.

But the other side of the First Amendment coin is that it also prohibits the government from telling us what we are required to say.The Kentucky legislation does exactly that.

It literally tells Twitter that it is required to publish certain speech, and that it will be subject to government sanction if it fails to do so.

That is compelled speech and courts have routinely and correctly struck down statutes that impose such a duty.

The bill also declares Whereas protecting the constitutional rights of the citizens of Kentucky is of utmost importance, an emergency is declared to exist and this Act takes effect upon its passage and approval by the Governor or upon its otherwise becoming a law.

This seems like a bit of an overreach. Were in the middle of responding to a pandemic.That seems like an actual emergency.And one that impacts thousands of Kentuckians. Id be curious if Mills and Wheeler could cite any Kentuckians whove had their accounts deleted by Twitter. And if they can identify any, Id also like to see the circumstances that led to the decision. Maybe theres an emergency in there somewhere, but I have a tough time imagining where it could be. By comparison, the notion that a private entity is kicking a few people off its platform hardly rises to the level of an emergency.

The Stop Social Media Censorship Act is a solution in search of a problem.And the hurt feelings of a former Twitter user in chief is hardly a reason to introduce a law that violates the Constitution.

Jack Greiner is managing partner of Graydon law firm in Cincinnati. He represents Enquirer Media in First Amendment and media issues.

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The rest is here:
Strictly Legal: Trump's hurt feelings not a reason to introduce a law that violates the Constitution - The Cincinnati Enquirer