Ohio GOP House Leader Asks if State Should Wait on Social Media

An Ohio bill to regulate social media companies’ alleged censorship of political views remained in committee after its sixth hearing Tuesday. The House Civil Justice Committee heard testimony but didn’t vote on HB-441, which would classify social media platforms as common carriers and allow users to sue platforms for viewpoint discrimination. Ohio Majority Floor Leader Bill Seitz (R) asked why Ohio should make a social media law when similar, court-blocked laws in Texas and Florida are pending appeal.

"A big part of me says" to wait for the typically conservative 5th Circuit U.S. Court of Appeals to rule on the Texas law, Seitz said at the livestreamed hearing. The 5th circuit set oral argument for May 9, while the 11th Circuit scheduled argument on Florida’s law for April 28 (see 2203280023). Also, the majority leader said it seemed unusual for the bill to have common carrier obligations enforced solely through a private right of action, since common carrier rules are usually regulated by an agency like the public utilities commission.

"The price of inaction will outweigh the price of maintaining the status quo," replied the Heritage Foundation’s Kara Frederick to the question about whether to wait for Texas and Florida litigation to wrap. Private suits would be a fast and meaningful way to combat censorship, she said. “This small handful of companies have exploited and perverted the very free market system that enabled them to grow into such dominant actors today."

Big social media companies might be better able to comply with the proposed law than rising startups including former President Donald Trump’s Truth Social, warned Americans for Prosperity Legislative Director Jeff Dillon. Inevitable litigation could cost Ohioans "hundreds of thousands of dollars of their hard-earned money defending a law that is riddled with constitutional concerns." Florida has already spent about $700,000 on litigation, and it could be more than $1 million if the case goes to the Supreme Court, he said. Social media platforms aren’t common carriers because they use editorial discretion, he said.

Chair Brett Hillyer (R) pondered a “burning divide” between conservatives and libertarians. He asked Frederick how she would respond to those who say “conservatives are arguably seen to be supportive of this regulation on Big Tech, and that goes against our doctrines and our dichotomy.” He also asked if there would be significant compliance costs “for not censoring political speech.”

Social media companies are “trying to have their cake and eat it, too,” when they say they can publish with their First Amendment rights while also getting protection from civil liability under Section 230 of the Communications Decency Act, said Rep. D.J. Swearingen (R). “Which one is it, and why should they be allowed to have both?”

If the proposed law can survive federal preemption and First Amendment challenges, it will interfere with free enterprise, said Ohio Chamber of Commerce Director-Tax and Economic Policy Tony Long: A better answer to concerns about big social companies is more competition.

Democrats questioned why Georgia should pass a similar law at a hearing last month (see 2203230057). Tennessee and Alaska legislators also mulled such bills in recent weeks.