A leader in the Democrat-controlled Colorado Senate has introduced a bill that would largely end freedom of the press as we know it.
Senate Bill 21-132 is titled the “Colorado Digital Communications Act.” The measure would require Internet platforms to register in Colorado and comply with content censorship. The censorship would include far-ranging restrictions on communications. As you might suspect, the bill defines censorable offenses in ways that privilege the “progressive” agenda.
The sponsor of the measure, Kerry Donovan (D-Vail), is not a back-bencher. She’s the state senate’s president pro tempore and an announced candidate for Congress in a district in which she does not live.
To understand just how regressive this bill is, let’s review some background:
The Constitution’s First Amendment protects both “the freedom of speech” and “the freedom of … the press.” The courts sometimes confuse the two, but under the First Amendment’s correct meaning, communication through a medium (including the Internet) is an exercise of “freedom of the press” (pdf). Classifying Internet communication this way is particularly appropriate in an era in which newspapers deliver their material electronically as well as on paper.
Constitutional historians usually date freedom of the press to 1694 or 1695. That was when the British government’s press licensing law expired. Authors and publishers no longer had to submit printed material to official censors for pre-publication approval. If freedom of the press was abused, the only remedy was post-publication legal action. The Supreme Court has recognized the importance of this event by emphasizing that the core of press freedom is freedom from prior restraint.
Donovan’s bill would turn back the clock to pre-1695 days by state regulation of “digital communications platforms.” This term specifically covers social media such as Facebook and Parler, but is broad enough to include newspapers that advertise to Colorado residents.
S.B. 21-132 essentially recreates the old British licensing system by erecting a state “Digital Communications Division” and requiring Internet platforms to register with it. Failure to register would be a crime punishable by fines of up to $5,000 per day!
Additionally, the measure would recreate pre-1695 censorship by discouraging and punishing “unfair or discriminatory digital communications practices.” The division would prosecute those accused of such practices and a “Digital Communications Commission” would try them.
Both the division and the commission could “subpoena witnesses and compel the testimony of witnesses and the production of books, papers, and records.” This would enable officials to harass a digital platform whenever anyone makes a charge against it—enough to induce most platform owners to avoid content that might annoy the “woke” crowd.
Further, the commission could impose “equitable relief to eliminate” an offending practice. Because the most common form of equitable relief is an injunction, you might think this would be limited to a mere cease and desist order. Not so. Injunctions can be mandatory in nature—that is, require affirmative acts. And the equitable remedy of “restitution” could involve assessment of huge money awards if the commission thought that was necessary to “eliminate” wicked speech.
Thus, the commission would have sweeping judicial power. Yet the bill fails to require elementary standards of due process. For example, it does not prescribe any particular burden of proof, such as proof beyond a reasonable doubt. It grants subpoena power to the prosecution, but not to the accused. Nor does it guarantee the accused access to legal counsel.
Real judges are given independence—long terms, fixed salaries, and the like. But this trial panel would consist mostly of political appointees nominated by the governor and approved by the state senate. Their term would be only four years, and the governor could remove appointees at any time: He need only state that they are guilty of “misconduct, incompetence, or neglect of duty”—terms the bill does not define.
The bill creates a list of “unfair or discriminatory” practices—essentially new crimes—for the state to censor. Among these are “practices that promote hate speech; undermine election integrity; [and] disseminate intentional disinformation, conspiracy theories, or fake news.”
The measure does not define any of these terms, so you can imagine the opportunities for avid “progressives.” After all, according to them, discussing irregularities in the 2020 presidential election is “undermining election integrity.” News reports they don’t like are “fake news.” Speech against groups they wish to privilege is “hate speech.” Speech against groups they hate is never hate speech.
As for the ban on “conspiracy theories”—under the bill’s wording, the state can shut you down even if the conspiracy you are discussing is real!
It should be obvious that S.B. 21-132 is screamingly unconstitutional. It doesn’t matter whether you consider Internet communication to be “the press” or “speech.” Even the most liberal judges would strike down this monstrosity on first reading.
But the fact that the bill was introduced raises some interesting issues:
First: Sen. Donovan’s effort to turn back the clock 327 years reminds us that so-called “progressives” are deeply regressive. Constitutional government that protects human freedom is a fairly modern phenomenon. The unlimited government most “progressives” seek is as old as the pharaohs. Scratch the typical “progressive” and you find a hidden totalitarian.
Second: I’ve previously documented the appalling ignorance of many public officeholders. This is another example. How can anyone get through school, much less become senate president pro tempore, and still imagine this bill could survive constitutional scrutiny? More fundamentally, how could such a person think political appointees could administer this system fairly or that censorship would be good for democracy?
Finally, I think it unlikely that Donovan crafted this thing unaided. At the risk of committing the “unfair practice” of entertaining a conspiracy theory, I’d like to know who is really behind it and what their plans are for America.
Robert G. Natelson is senior fellow in constitutional jurisprudence at the Independence Institute in Denver and a former constitutional law professor. He taught, among other subjects, First Amendment law and remedies law. He is the author of several scholarly articles on the First Amendment and on remedies, as well as the book “The Original Constitution: What It Actually Said and Meant” (3rd ed., 2014).
Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.