The Arizona Constitution provides stronger protections for freedom of speech than the First Amendment does, potentially providing legislative solutions to Big Tech censorship in the state at a moment where political censorship is more pervasive than ever.
Article 2 Section 6, Arizona Constitution states that “Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right. “
This differs greatly from the federal constitution in that it doesn’t limit the powers of a legislature to restrict freedom of speech. The US Constitution identifies “Congress” as the body it’s restricting from making a law abridging the freedom of speech.
The speech rights established by the Arizona Constitution are thus expressed positively; recognizing a right belonging to the people, as opposed to negating an infringement of said right.
Quite obviously, the Arizona Constitution was written in an 1910, an era in which the internet would’ve been just as inconceivable as it was in 1789.
In a 2019 Arizona Supreme Court case, the state’s highest court recognized in a 4-3 judgement that the Arizona Constitution provided greater protections than the federal constitution. The case recognized that violations of the First Amendment would represent de facto violations of the
It’s not outside the realm of possibility that the Arizona Attorney General, or state legislature, could hold Big Tech oligarchs to account for violating the Article 2 Section 6 rights of Arizona citizens- especially in a context the major platforms are collectively adjudicated to be acting as a trust in order to suppress competition and silence lawful speech.
Three Arizona legislators called upon Attorney General Mark Brnovich to begin an antitrust investigation into Big Tech oligarchs following the coordinated deplatforming operation against Parler, in which both Amazon and Apple colluded to restrict the free speech platform from the internet.
In an era where the overwhelming majority of free speech is communicated online, the censorious actions of Big Tech very plausibly represent an assault of the right of free expression guaranteed in the Arizona Constitution. Both chambers of Arizona’s legislature remain Republican, even as the state has become purple, and action against Big Tech censorship on the state level could become a real possibility in the coming years.
Texas Governor Greg Abbott Pledges to Outlaw Big Tech Censorship
Texas has had enough.
Texas Governor Greg Abbott is pledging to outlaw Big Tech’s left-wing censorship, announcing his support of a bill in the Texas State Senate that would open social media monopolies to lawsuits from users at a state level.
State Senator Bryan Hughes Senate Bill 12 would provide legal recourse for users of Big Tech platforms who are banned from the services to return, designating Big Tech monopolies such as Twitter, YouTube and Facebook as common carriers.
“They are common carriers and they cannot discriminate against people … it’s a violation of the first amendment,” Hughes said. “This is going to protect Texas’ free speech and get them back online.”
I am joining @SenBryanHughes to announce a bill prohibiting social media companies from censoring viewpoints.
It's un-American, Un-Texan, & soon to be illegal.https://t.co/zSdirRa1pj
— Greg Abbott (@GregAbbott_TX) March 5, 2021
“These are the areas that used to be the courthouse square where people would come and talk,” said Abbott of the legislation. “Now, people are going to Facebook and Twitter to talk about their political ideas, and what Facebook and Twitter are doing — they are controlling the flow of information, and sometimes denying the flow of information.”
“Texas is taking a stand against big tech political censorship. We are not going to allow it in the Lone Star state.”
The law establishing legal recourse against online censorship may prove legally durable enough to avoid breaching Section 230 of the Communications Decency Act. That law provides immunity for user-created content on internet platforms, and doesn’t give social media platforms a right to discriminate against active or potential users on the basis of political ideology.
The future for fighting Big Tech censorship lies at a state level. While some state Republican officials have proven reluctant to separate themselves from the lucrative business lobbies of Big Tech oligarchs, Hughes’ approach seems legally innovative enough to give free speech defenders a fighting shot at free expression online.
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