The Social Media Anti-Censorship Act (“SMACA”) would prohibit censorship of lawful speech on major social media platforms.

For purposes of this legislation, “censorship” includes:

  • Denial of platform access and normal use thereof (e.g., lockouts, suspensions, bans)
  • “Shadowbanning”
  • Issuance of “verified” status based on any factor(s) unrelated to identity authentication
  • “Throttling” accounts and/or content without disclosure
  • Embargoing content (i.e., no “memory-holing” content without the consent of the creator)
  • Manipulating “trending” algorithms without disclosure
  • Demonetization (i.e., content-based monetization decisions)

Lawful speech” is based upon the standards enshrined in the U.S. Constitution, with the following limitations:

  • No child pornography
  • No explicit, credible threats of physical violence
  • Platforms may choose to prohibit publishing any individual’s nonpublic residential address, telephone number, or email address without their consent
  • Platforms may choose to prohibit otherwise-lawful pornographic video and/or images (i.e., content containing explicit sexual acts)
  • Restrictions on copyrighted content are already addressed by the DMCA
  • Platforms may choose to prohibit “spam” on a content-neutral basis (e.g., based on frequency/similarity of posts, or any other content-neutral methodologies) (this content-neutrality limitation will not apply to spam that advertises lawful or unlawful pornographic video and/or images (i.e., content containing explicit sexual acts))

Major social media platforms” means social media platforms with a minimum of 200 million monthly active users. At present, it would include Facebook (including Instagram), Twitter, and YouTube. (Smaller platforms and message boards will not be affected. Messaging services (e.g., WhatsApp, Facebook Messenger) will not be affected.)

The legislation would impose company fines of $500,000 per instance of wrongful censorship, and would be enforced by the FCC. Judicial remedies (both monetary and non-monetary) may also be available to aggrieved parties.