What Should Freedom-Loving States Do About Internet Content?
"By avoiding failed, heavy-handed policies attempted in other states and adopting a policy strategy focused on addressing government overreach and embracing free enterprise, Montana state lawmakers have the opportunity to chart a productive path forward for internet content policy."
Over the last decade, internet content policies have sparked significant debate about censorship, bias, and protecting children from harmful content. In response, state policymakers across the country have introduced hundreds of different proposals aimed at dictating content rules. These proposals range from, on the one hand, online safety legislation requiring ID verification or parental consent to access certain websites and apps with harmful content, to, on the other hand broad antitrust-type mandates prohibiting platforms from censoring any content.
As Montana lawmakers chart their own path on regulation of internet content, it’s important to review key lessons from other state experiences to ensure our state enacts sound policies.
Lessons From Other States
1) Erroneous Claims About Monopolies
The most common justification we’ve seen for state lawmakers’ scrutiny of internet content policies is the claim that internet companies are monopolies—arguing that their widespread use ensures permanent dominance, making them unresponsive to user preferences and necessitating government action.
But history tells a different story. The evolution of social media, when left untouched by government interference, demonstrates that dissatisfied users will seek alternatives. Early giants like Friendster and MySpace gave way to Facebook, YouTube, and Instagram—just as those platforms now face mounting competition. In a free market, if users are unhappy with content moderation policies, platforms must adapt or risk losing their audience.
This dynamic was evident with X (formerly Twitter) after Elon Musk’s acquisition. Frustrated by the platform’s previous moderation policies, many users returned, while others left for competing services that better aligned with their preferences.
The video below illustrates how quickly platforms rise and fall—so long as the government stays out of the way:
Additionally, so-called “big tech” companies don’t appear to qualify under federal monopoly guidelines. For example, a NetChoice publication notes that the market share of Amazon, Apple, Facebook, and Google accounts for only fractions of their respective markets, and none have demonstrated the durable market power characteristic of monopolies.
These erroneous monopoly claims have led some state lawmakers to take an antitrust approach to legislation, which, as we cover in the next section, is often legally and constitutionally problematic.
2) Constitutional Issues
Two of the most prominent examples of the antitrust approach to internet content come from Texas and Florida, which both passed laws in 2021 dictating the content policies that social media companies must adopt, arguing that social media constitutes a “digital town square.”
Both of these bills were quickly challenged in court, and in 2023, the U.S. Supreme Court agreed to jointly hear the Florida case, Moody v. NetChoice, and the Texas case, Paxton v. NetChoice. A year later, the Supreme Court issued a unanimous decision against Texas and Florida laws.
Writing for the majority, the Court stated:
“In a better world, there would be fewer inequities in speech opportunities; and the government can take many steps to bring that world closer. But it cannot prohibit speech to improve or better balance the speech market. On the spectrum of dangers to free expression, there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana.”
Similarly, courts have ruled against Texas for a 2023 law that required internet content filtering for users under 18, a 2022 California law that mandated online platforms to default to the most stringent privacy settings, and a 2022 New York law that dictated how social media platforms treat content the government doesn’t like––all as violations of the First Amendment.
It is clear that state efforts to control internet content come with serious constitutional risks. If Montana simply copies Texas, Florida, and other states, it will almost certainly face similar legal problems.
3) Government Pressure Drives Social Media Censorship
The 2022-23 Twitter Files exposed how government actors launched a large-scale campaign to pressure social media companies to moderate, censor, or remove content they opposed. Meta CEO Mark Zuckerberg has openly admitted that government pressure played a key role in Facebook and Instagram’s controversial censorship decisions during the COVID-19 pandemic.
It is now clear that much of the censorship and bias affecting internet users over the past few years has not been entirely organic; it has been driven from the top down by the government.
State legislation targeting the content policies of private companies won’t necessarily address the underlying issue of government actions designed to skirt constitutional limits.
A Better Path Forward
State policymakers certainly are not powerless when it comes to promoting free expression on the internet. Instead of copying failed, heavy-handed policies of other states, we suggest that Montana lawmakers adopt the following policy strategy for internet content regulation:
1) Avoid Clearly Unconstitutional Policy
We recommend that Montana lawmakers avoid pursuing an antitrust approach to internet content legislation, which, as we detailed, has already been met with numerous legal and constitutional problems in the courts.
Regarding the protection of minors from harmful content, the preventon of exploitation, and addressing online safety, policymakers should focus on proposals that are narrowly focused on enhancing enforcement of existing safety standards. For example, several states (including Montana) have passed laws requiring an ID to access adult websites. These laws have seen more success in the courts than broader laws, such as Utah’s attempt to require social media companies to verify the ages of users.
2) Focus on Government Overreach
We recommend that Montana lawmakers concerned about online censorship and privacy focus on ensuring the government cannot skirt the Constitution to influence internet content or collect our digital information.
State lawmakers should seek to ensure that government cannot engage through the backdoor with private internet companies to unconstitutionally conduct mass surveillance, mass data collection, or promote censorship on their behalf. Montana’s 2022 Constitutional Amendment proposal to protect digital data is a good example of this approach (which passed with over 80% of the vote), as is Sen. Ken Bogner’s SB 397, enacted in 2023, to address government use of facial recognition technology.
3) Promote Freedom and Innovation
Increasing government control over the internet is a mistake. As we detailed in our 2022 video, replacing Big Tech with Big Government will only entrench the status quo and worsen online speech:
State lawmakers should instead focus on creating a pro-innovation environment that enables people to build, invest, and participate in the new platforms of the future.
Particularly, we believe emerging blockchain technology holds the potential to make internet content freer and more secure than ever before, but the industry has been stifled by regulatory uncertainty and targeted by overzealous regulators.
Proactive state policy reforms to address regulatory uncertainty, coupled with continued pro-innovation regulatory and tax policies, will enable the blockchain industry to flourish in Montana. In general, lawmakers should be proactively protecting the Right to Compute.
Conclusion
By avoiding failed, heavy-handed policies attempted in other states and adopting a policy strategy focused on addressing government overreach and embracing free enterprise, Montana state lawmakers have the opportunity to chart a productive path forward for internet content policy.