House panel considers policy to stop elected officials requesting social media post takedowns 

Updates: Adds comments from Gregg Leslie and Paul Bender.

A House committee discussed potential legislative reform that would keep state officials from compelling social media companies to remove posts they disagree with.

The House ad hoc Committee on Oversight, Accountability, and Big Tech met for its first meeting on Sept. 5 to examine social media conduct by Gov. Katie Hobbs back when she served as secretary of state and asked Twitter and Facebook to remove various social media posts.

Committee members examined emails from Hobbs’ office when she was secretary of state obtained by Brian Anderson, the founder of Arizona Capitol Oversight and a researcher for former Gov. Doug Ducey.

James Kerwin, an attorney who represents the conservative Mountain States Legal Foundation, highlighted two of Anderson’s obtained emails that he said were “concerning from a constitutional point of view” during a presentation he delivered to the ad hoc committee.

One email features a staffer from Hobbs’ previous office asking the National Association of Secretaries of State for guidance after requesting Twitter and Facebook bulk remove posts related to the use of sharpies on election ballots from 2020. Another email showed a staffer asking Twitter to remove a post that was critical of Hobbs’ administration of the 2022 general election.

“Whatever the surrounding circumstances of this communication, it suggests a very troubling intention on the part of a governmental official to stamp out speech that was disagreed with,” Kerwin said.

There is some case law related to government officials asking companies to remove speech. In May 2023, the 9th Circuit Court of Appeals ruled that a letter sent by Sen. Elizabeth Warren, D-Mass., to Amazon asking the company to stop the business from directing customers to a book she said “perpetuates dangerous conspiracies about COVID-19” was lawful and not an attempt to coerce Amazon to remove the book from its online catalog.

The court determined that Warren’s letter was permissible persuasive speech and nothing in her letter suggested a government sanction would be imposed if Amazon didn’t comply with her requests.

Kerwin acknowledged the Warren case and said Hobbs’ staffers’ emails fall under a “gray area” of the definition of permissible persuasive speech and said it was up to a judge’s interpretation of the law and the intent of the obtained emails.

Gregg Leslie, a journalism and mass communications professor and the executive director of Arizona State University’s First Amendment Clinic, said on Sept. 6 that United States courts have generally shown it takes additional threat of action from a government official for a request like Hobbs’ or Warren’s to be considered coercive, but he noted some have argued the action itself of a government official telling a social media company to remove posts could be considered improper.

“It would really turn on what that content was and if (the request) really is an attempt to stop political opinions or if they only did this when there was a threat made or something that sounded so close to a threat that the government reasonably felt that it needed to take action,” Leslie said.

Kerwin also pitched legislative policy ideas to clear up that “gray area” of the law on a state level, although he noted he didn’t endorse any particular idea.

Some of Kerwin’s ideas included adding disclaimers to requests from state officials seeking to enhance or restrict an individual’s expression that note the request is voluntary, publishing all communications like Hobbs’ emails on a governmental website, or a ban of state officials from making these types of speech-limiting requests.

Rep. Neal Carter, R-San Tan Valley, said while he had issues with the legality of some of the ideas presented, he was interested in further exploring them to craft future legislation.

Committee Chairman Rep. Alexander Kolodin, R-Scottsdale, expressed similar thoughts.

“It is not OK for the government to censor speech simply because it acts through the private sector,” Kolodin said.

But Kerwin said courts are only interested in what a governmental official compelled an individual or entity to do, citing YouTube efforts to take down videos and posts that contradict the World Health Organization and local health authorities. He said in a case like this, a social media company can argue that any post published on its platform is an expression of the company’s speech rather than the individual who made the post.

“If YouTube is really willingly making itself a puppet of the United States government, it’s hard to see a First Amendment violation,” Kerwin said.

Paul Bender, a professor of law at ASU’s Sandra Day O’Connor College of Law, said there could potentially be some separation-of-powers issues with the legislators trying to control what executive officials do in their capacity.

“You’ve got the Legislature trying to tell the Executive how to do their jobs and to some extent they can do that because they can pass laws telling executives what to do … perhaps the Legislature doesn’t have the right to tell executives how to deal with (social media companies),” Bender said.

The “gray area” of First Amendment law as it relates to social media companies could soon be resolved as the U.S. Supreme Court is scheduled Sept. 26 to discuss whether to hear a challenge to a 2021 Florida law that placed restrictions on social media companies banning politicians and blocking users’ content.

“That’ll clarify a lot of the gray area that we’re seeing now by applying current law that doesn’t exactly fit this situation to this new situation,” Leslie said of the Supreme Court’s upcoming decision.

Leslie also noted the court is set to examine a case that challenges the legality of politicians blocking users on social media or other websites as challengers argue politicians are running a public forum.

“That would affect whether the secretary of state can block a viewer who’s commenting on her Twitter feed or something like that so there’s a lot coming up in this area,” Leslie said.

The committee also heard a presentation from Robert Epstein, a psychology professor and researcher at the American Behavior Institute for Behavioral Research and Technology. He has become known for his work alleging that search engine companies like Google are manipulating search engine results to interfere with U.S. elections.

Epstein claimed that had Google not allegedly interfered with Arizona’s 2022 general election, then Republican Kari Lake would have won the gubernatorial race and alleged Google could potentially shift millions of votes in the 2024 presidential election.

Epstein’s research has been scrutinized for not being peer-reviewed and using small sample sizes. A 2019 article from The New York Times reported while Google does “sanitize” its search results by prioritizing more trusted sources, other computer science professors quoted in the article said Epstein was “misrepresenting the situation.”

Lake attended the hearing to deliver a statement about Epstein’s research during the public comment period, claiming Hobbs and then-Secretary of State candidate Adrian Fontes “collaborated with big tech” to censor information from conservatives and once again claiming the 2022 election was fraudulent.

Rep. Cesar Aguilar, D-Phoenix, said he wasn’t convinced by Epstein’s research and noted that Epstein has been involved with the Republican Party. Epstein said earlier in the hearing that he had been in contact with Lake and Sens. Ted Cruz, R-Texas, and Ron Johnson, R-Wis., while also attending a fundraising event for Arizona Senate candidate Blake Masters and talking with former Trump Chief Strategist Steve Bannon.

“Republicans do not have popular views and that is why their opinions are not popular on social media,” Aguilar said. “Maybe instead of blaming Google for causing Republicans to lose their elections, Republicans start to advocate for popular opinions in Arizona. If you would like to know what popular opinions look like in Arizona, maybe you can Google it.”