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2023 - 2024 LEGISLATURE
2023 ASSEMBLY BILL 895
January 4, 2024 - Introduced by Representatives SORTWELL, BEHNKE, GOEBEN,
MURPHY, SCHMIDT and SCHRAA. Referred to Committee on Judiciary.
***AUTHORS SUBJECT TO CHANGE***
AN ACT to create 895.053 of the statutes; relating to: creating a civil cause of
action against the owner or operator of a social media website that restricts
religious or political speech.
Analysis by the Legislative Reference Bureau
This bill creates a civil cause of action against the owner or operator of a social
media website that is available to the public and that has more than 150 million
users, if the owner or operator of the website intentionally does any of the following:
1. Deletes or censors, or uses an algorithm to delete, censor, disfavor, or
censure, the religious speech or political speech of a person that is a resident of this
state, as defined in the bill, and that subscribes to or has an account with the social
media website (a user). The bill defines “religious speech" as “speech relating to a
set of unproven answers, truth claims, faith-based assumptions, and naked
assertions that attempt to explain such greater questions as how the world was
created, what constitutes right and wrong actions by individuals, and what happens
after death.” The bill defines “political speech" as “speech relating to the state,
government, body politic, or public administration as it relates to governmental
policy or policy making,” including speech by the government or a candidate for office
and any discussion of social issues.
2. Fails to notify a user that the user's religious speech or political speech has
been deleted, censored, disfavored, or censured, or that the user has been
deplatformed. The bill defines “deplatforming” as deleting or banning a user from
the social media website for more than 60 days.
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3. Fails to allow a user who has been deplatformed to access or retrieve all of
the user's information, content, material, and data for at least 60 days after being
deplatformed.
4. Fails to publish the standards, including detailed definitions, that it uses or
has used for determining how to delete, censor, disfavor, and censure speech on the
social media website and how to deplatform and shadow ban users on the social
media website. The bill defines “shadow banning” as limiting or eliminating the
exposure of a user, or content posted by a user, to other users of the social media
website.
5. Applies censorship, deplatforming, and shadow banning standards in a
manner that is not consistent among its users on the social media website.
6. Fails to inform each user about any changes to the social media website's user
rules, terms, and agreements.
7. Makes changes to its user rules, terms, and agreements more than once
every 180 days.
8. Fails to provide a mechanism for a user to request the number of other users
who were provided or shown the user's content or posts and provide that number to
the user upon request.
The bill provides that it is not a defense to such an action that an owner or
operator of the social media website considered a user's religious speech or political
speech to be related to content that is offensive on the basis of the owner's or
operator's personal moral code.
In addition to a user's cause of action, the bill authorizes the attorney general
or any district attorney to bring a civil cause of action on behalf of the user or on
behalf of the state, or both, with respect to an owner's or operator's intentional
censorship of a user's religious speech or political speech. Each party may bring a
cause of action independently from or in conjunction with one another.
If a user, the attorney general, or a district attorney prevails in a civil action,
the court may award all of the following relief:
1. Any economic and noneconomic damages suffered by the user, which are
awarded to the user regardless of whether the user participated in the action.
2. Statutory damages in an amount of not less than $75,000 for each intentional
act described in items 1 to 8 above. Statutory damages related to intentional
censorship are awarded to the state if the attorney general or a district attorney is
a prevailing party. Statutory damages related to other intentional acts are awarded
to the user if a prevailing party.
3. If aggravating factors are present, punitive damages. Any punitive damages
are awarded to the state if the attorney general or a district attorney is a prevailing
party.
4. Injunctive relief.
Regardless of who prevails in the civil action, the court may award the
prevailing party costs and reasonable attorney fees but may not assess costs or
attorney fees against the state.
The bill creates certain exceptions to liability for owners and operators of social
media websites. For example, an owner or operator is not liable for actions in relation - 3 -2023 - 2024 Legislature
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to speech that calls for immediate acts of violence, that is obscene or pornographic
in nature, or that entices criminal conduct.
For further information see the state fiscal estimate, which will be printed as
an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SECTION 1. 895.053 of the statutes is created to read:
895.053 Social media censorship; action for. (1) DEFINITIONS. In this
section:
(a) “Algorithm" means a set of instructions designed to perform a specific task.
(b) “Deplatform" means to delete or ban a user from a social media website for
more than 60 days.
(c) “Hate speech" means speech concerning content that a person finds
offensive on the basis of the person's personal moral code.
(d) “Obscene" means that all of the following apply to content:
1. An average individual, applying contemporary community standards, would
find that the content, taken as a whole, appeals to the prurient interest.
2. The content depicts or describes sexual conduct in a patently offensive way.
3. The content, taken as a whole, lacks serious literary, artistic, political, or
scientific value.
(e) “Political speech" means speech relating to the state, government, body
politic, or public administration as it relates to governmental policy or policy making.
“Political speech” includes speech by the government or a candidate for office and any
discussion of social issues.
(f) “Religious speech" means speech relating to a set of unproven answers, truth
claims, faith-based assumptions, and naked assertions that attempt to explain such
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greater questions as how the world was created, what constitutes right and wrong
actions by individuals, and what happens after death.
(g) “Shadow ban" means to limit or eliminate the exposure of a user, or content
or material posted by a user, to other users of the social media website through any
means, regardless of whether the action is determined by an individual or an
algorithm, and regardless of whether the action is readily apparent to a user.
“Shadow ban” does not include any action towards content or material that is viewed
by a user if the action is taken at the request of that user.
(h) “Social media website" means a website or application that enables users
to communicate with each other by posting information, comments, messages, or
images and to which all of the following apply:
1. The website or application is available to the public.
2. The website or application has more than 150 million users.
(i) “User” means a person that subscribes to or has an account with a social
media website and to whom any of the following applies:
1. The person is an individual who is a U.S. citizen and has resided in this state
for at least 28 consecutive days before the deletion, censoring, disfavoring, or
censuring that is the basis of the person's cause of action under sub. (2).
2. The person is not an individual and the person has its commercial domicile,
as defined in s. 71.22 (1g), in this state.
(2) CAUSE OF ACTION. Except as provided in sub. (6), a user of a social media
website has a civil cause of action against the owner or operator of the social media
website if the owner or operator intentionally does any of the following:
(a) Deletes or censors the user's religious speech or political speech on the social
media website.
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(b) Uses an algorithm to delete, censor, disfavor, or censure the user's religious
speech or political speech on the social media website.
(c) Fails to notify a user that the user's religious speech or political speech has
been deleted, censored, disfavored, or censured or that the user has been
deplatformed.
(d) Fails to allow a user who has been deplatformed to access or retrieve all of
the user's information, content, material, and data for at least 60 days after being
deplatformed.
(e) Fails to publish the standards, including detailed definitions, that it uses
or has used for determining how to delete, censor, disfavor, and censure the speech
of users on the social media website and how to deplatform and shadow ban users
on the social media website.
(f) Applies censorship, deplatforming, and shadow banning standards in a
manner that is not consistent among its users on the social media website.
(g) Fails to inform each user about any changes to the social media website's
user rules, terms, and agreements.
(h) Makes changes to its user rules, terms, and agreements more than once
every 180 days.
(i) Fails to provide a mechanism for a user to request the number of other users
who were provided or shown the user's content or posts and provide that number to
the user upon request.
(3) UNAVAILABLE DEFENSE. It is not a defense to an action brought under this
section that the owner or operator of a social media website considered a user's
religious speech or political speech to be hate speech.
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(4) ENFORCEMENT BY ATTORNEY GENERAL OR DISTRICT ATTORNEYS. (a) If the owner
or operator of a social media website intentionally censors a user's religious speech
or political speech as described under sub. (2) (a), in addition and supplementary to
the user's cause of action that exists under sub. (2), the attorney general or any
district attorney, on behalf of the user or on behalf of the state or both, may commence
and maintain an action with respect to the intentional censorship, separately or in
conjunction with an action brought under sub. (2) or under this paragraph.
(b) In an action under this section, the user who has the cause of action under
sub. (2), the attorney general, or any district attorney may intervene in the action as
a matter of right.
(5) REMEDIES. (a) If a user, or the attorney general or district attorney under
sub. (4), prevails in a civil action under this section, the court may award appropriate
relief, including all of the following:
1. Any economic and noneconomic damages suffered by the user, which the
court shall award to the user regardless of whether the user participated in the
action.
2. Statutory damages in an amount of not less than $75,000 for each intentional
act described under sub. (2). If the attorney general or district attorney under sub.
(4) is a prevailing party, the court shall award statutory damages related to
intentional censorship to the state. If the user is a prevailing party, the court shall
award any other statutory damages to the user.
3. If aggravating factors are present, punitive damages. If the attorney general
or district attorney under sub. (4) is a prevailing party, the court shall award any
punitive damages to the state.
4. Injunctive relief.
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(b) The court may award a prevailing party, including the state, in a civil action
under this section costs and, notwithstanding s. 814.04 (1), reasonable attorney fees.
The court may not assess costs or attorney fees under this paragraph against the
state.
(c) The owner or operator of a social media website may mitigate damages
available under par. (a) by doing any of the following within a reasonable amount of
time:
1. Restoring from deletion or disfavor or removing the censoring or censuring
of a user's religious speech or political speech.
2. Notifying a user that the user's religious speech or political speech has been
deleted, censored, disfavored, or censured or that the user has been deplatformed.
3. Allowing a user who has been deplatformed to access or retrieve all of the
user's information, content, material, and data.
4. Publishing the standards, including detailed definitions, that it uses or has
used for determining how to delete, censor, disfavor, and censure speech on the social
media website and how to deplatform and shadow ban users on the social media
website.
5. Taking actions to apply censorship, deplatforming, and shadow banning
standards in a manner that is consistent among its users on the social media website,
and to reverse any previous actions that were taken in a manner that was
inconsistent among users.
6. Informing each user about any changes to the social media website's user
rules, terms, and agreements.
7. Reversing any changes to its user rules, terms, and agreements that were
made more frequently than once every 180 days.
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8. Providing a mechanism for a user to request the number of other users who
were provided or shown the user's content or posts and providing that number to the
user upon request.
(6) EXCEPTIONS. This section does not apply to any of the following:
(a) The owner or operator of a social media website that takes an action under
sub. (2) in relation to a user's speech on the social media website to which any of the
following applies:
1. The speech calls for immediate acts of violence.
2. The speech is obscene or pornographic in nature.
3. The speech is the result of a court order or the sharing of the speech violates
a court order.
4. The speech comes from an inauthentic source or involves false personation.
5. The speech entices criminal conduct.
6. The speech involves bullying minors.
7. The speech involves financial fraud.
(b) The owner or operator of a social media website that is affiliated with a
particular religion and that deletes or censors a user's religious speech, or that uses
an algorithm to delete, censor, disfavor, or censure a user's religious speech, on the
social media website.
(c) The owner or operator of a social media website that is affiliated with a
particular political party and that deletes or censors a user's political speech, or that
uses an algorithm to delete, censor, disfavor, or censure a user's political speech, on
the social media website.
(d) The deleting or censoring by a user of another user's speech.
SECTION 2.0Initial applicability.
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SECTION 2
ASSEMBLY BILL 895
(1) This act first applies to an action by the owner or operator of a social media
website that occurs on the effective date of this subsection.
SECTION 3.0Effective date.
(1) This act takes effect on the 30th day after the day of publication.
(END)
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