Don’t let government curb free speech to stop its abuse

A proposed Colorado bill is contemptible in its implications for the First Amendment

March 11, 2021 1:52 pm

Volunteers unfurl a giant banner printed with the Preamble to the U.S. Constitution during a demonstration against the Supreme Court’s Citizens United ruling at the Lincoln Memorial on the National Mall, Oct. 20, 2010, in Washington, D.C. (Getty Images)

One of the most alarming bills so far introduced during the current session of the Colorado General Assembly is a proposed law known as “Digital Communications Regulation.”

The law is audacious in its intent, hair-raising in its scope, and contemptible in its implications. It should never have made it into official circulation, and no lawmaker ought so much as humor it. The sooner it’s rejected the better.


The proposal, Senate Bill 21-132, would create a digital communications division, the position of director to run the division, and a digital communications commission. The job of the officials in this new bureaucracy would be to police social media and other “digital communications platforms” alleged to have allowed on their sites content that promotes hate speech, undermines election integrity, or disseminates disinformation, conspiracy theories or — this term is actually in the law, as if any agent of the government could define it — “fake news.”

These regulated platforms would have to register with the division every year or pay a daily fine of up to $5,000. The commission would have the power to subpoena witnesses and compel sites to adhere to its definition of permissible speech. Alleged violators could wind up in court.

There should be no disputing that the way disinformation and other toxic speech has proliferated online is an unprecedented threat. Without social media, the lies that persuaded millions of Americans that the November election was stolen from former President Donald Trump would have been relegated, as such lunacy once was, to the fringe of the national discourse, robbing an outrage like the Jan. 6 insurrection of its fuel.

Throughout American history, the primary concern of free speech advocates has been the government curbing the right of citizens to express themselves, and yet the age of social media has demonstrated that abuse of free speech can threaten to destroy the very constitutional order that guarantees the right of free speech.

Sen. Kerry Donovan represents the 5th District in the state Senate. (Colorado General Assembly)

But the remedy for abuse of free speech by some cannot be to undermine rights that offer protections for all. That’s what SB-132 would do. “These people, these elected politicians, should at least read the Constitution,” Denver First Amendment attorney David Lane said about the bill, according to Complete Colorado. “When they don’t understand what they are reading, they should go ask someone smarter than they are to read it for them.”

We don’t have to look far to see what civic ailments result from the virus of governmental speech control. There are celebrity patients like North Korea, China and Russia. But not even the U.K. is immune. After TV commentator Piers Morgan criticized remarks Meghan Markle made during her recent interview with Oprah Winfrey he found himself under investigation by Ofcom, a regulator that makes sure “viewers and listeners are protected from harmful or offensive material on TV, radio and on-demand.”

It doesn’t matter that Morgan’s speech was offensive, which it was. In America, that a person takes offense to speech is not a measure of the speech’s permissibility. “This is what happens when you live in a country where there is no First amendment. Insanity,” CNN’s Jake Tapper said in a tweet about Ofcom’s Morgan investigation.

The Colorado bill is clearly aimed at social media platforms — Facebook, Twitter and Instagram, as well as YouTube and Twitch, are name-checked right in the bill text — but it’s unclear who else might be subject to its strictures. “The language of the bill appears to apply to anyone with a social media presence that disseminates news and information to Coloradans,” including broadcast news organizations, print newspapers and bloggers, according to Complete Colorado.

In recent years the top politician in the country attacked media outlets he didn’t like for publishing what he falsely called fake news. Now a politician in Colorado wants to make fake news illegal.

What’s more surprising is the identity of that politician. Democratic Sen. Kerry Donovan, who is the Senate’s president pro tempore, is the only sponsor in either chamber of the proposed Digital Communications Regulation legislation. Such minimal support of a bill is often a sign that there’s little hope for its success, but Coloradans should treat the proposal as a grave matter, not just because of the oppression it would represent in the unlikely event that it passed but also because Donovan has national aspirations.

Having served in the state Senate since winning election in 2014, Donovan, a Vail resident, is running to unseat U.S. Rep. Lauren Boebert in Colorado’s 3rd Congressional District. Others have also announced campaigns to wrest the seat from the freshman firebrand Boebert, but Donovan, given that she enjoys substantial name recognition and support, has to be considered among Boebert’s most formidable contenders.

Now Coloradans have to ask: What kind of congresswoman would Donovan make? The answer: The kind that might foist anti-First Amendment tendencies on not just her home state but the whole country.

Donovan should withdraw her support of the bill, and state lawmakers should spend not a single minute more considering it.


Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.