The legal review note for a bill under consideration in the Montana Legislature generated the ire of an Arizona man who helped draft the bill, and a claim that the Legislative Services Division attorneys who analyzed the bill provided “fake legal advice” by noting concern about the measure running contrary to federal law.
Legal review notes are generally dry, technical affairs meant to inform lawmakers of potential Constitutional conformity issues presented by legislation, but the note for Senate Bill 391, which aims to put social media platforms and big tech companies under the regulatory oversight of the Montana Public Service Commission, prompted bombastic rhetoric and bold claims.
Martin Lynch, formerly a manufacturing engineer for Boeing, provided the following criticism of Legislative Services’ analysis of the bill. The criticism has been attached to the legal review note at the request of bill sponsor Sen.Theresa Manzella, R-Stevensville.
“The State of Montana needs permission in Federal Statute to pass laws that follow the Constitution, or Montana might get sued by Big Tech. You can put wherever else you want here, but this is all you are saying. ML”
In a broadside against “corruption in the legal profession,” Lynch went on to write that most states’ lawmakers are part-time and term-limited, “so Fake Legal Advice is easy to pass off as legitimate.” He added that “most important votes are close so you only need to fool a few well meaning, confused souls.”
“Your lawyers have you scared of the Big Tech Boogey Man. I can assure you this is nothing compared to the People when they find out they are being sold out in their own State Capitols,” wrote Lynch, who is also involved in We the People Court Services, which advertises a suite of services for families under the scrutiny of Child Protective Services.
The argument made by Legal Services Division Director Todd Everts and division attorney Jameson Walker in the legal review note is that SB 391 may run contrary to federal law and therefore could violate the Supremacy Clause of the U.S. Constitution. They wrote that a provision in the Communications Decency Act protects “operators of interactive computer services” from civil liability if they moderate or remove user content, particularly if it’s a good faith effort to restrict access to content the operator considers to be “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”
In a video interview with “conservative news blog and video information website” Northwest Liberty News that appeared on the polemical right-wing commentary site Montana Daily Gazette, Manzella said a poll she conducted on social media about social media censorship factored into her decision to sponsor the bill.
“The response from the people was absolutely, overwhelmingly that they do feel they’ve been censored wrongly, unjustly,” she said. “I’m never afraid of the fight, and if the people want it, let’s go for it.”
Randy Pinocci, who served one term in the Legislature 2015-17 before being elected to the Montana Public Service Commission in 2018, also appeared in video interviews with Northwest Liberty News arguing that internet regulation is an appropriate role for the PSC to assume and that interest in such a bill is high.
“What the taxpayers are demanding is some protection from discrimination,” Pinocci said.
PSC commissioners are divided about the bill. Pinnocci, Tony O’Donnell and Jennifer Fielder voted to support the measure during the PSC’s March 23 meeting. PSC Chair James Brown and Vice-Chair Brad Johnson voted not to support it. With three in favor and two opposed, the commission will support SB 391.
Brown, a lawyer with offices in Helena and Dillon, said “I absolutely hate this bill” when registering his opposition. He pushed back against the idea that social media regulation is a First Amendment issue, and said he believes the bill is preempted by federal law.
“The First Amendment is designed to protect your average person, if you will, from government action. That’s the purpose of the First Amendment. It was never designed to protect you from a private business action, which is what this bill is trying to get at,” Brown said. “I believe that if this bill was passed, there would be a lawsuit brought against this legislation.”
SB 391 is scheduled for a hearing before the Senate Energy and Telecommunications Committee Thursday afternoon.
A similar measure sponsored by Rep. Brad Tschida, R-Missoula, narrowly failed to pass second reading in the House earlier this month. House Bill 573 sought to prevent software providers from censoring content unless it’s deemed deceptive, pretextual, or inconsistent with a provider’s terms of service, and included a provision specifically preventing censorship of political content.
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