Digital Free Speech and Censorship Across the U.S. States: Legislation and Legal Actions, 2019-Present

Dark clouds of digital censorship are descending rapidly over the West. A series of recent investigations has brought this censorship into sharper focus: from the Twitter files, hearings and investigations from the U.S. House Select Subcommittee on the Weaponization of the Federal Government, to Meta CEO Mark Zuckerberg’s recent letter admitting and regretting that Facebook yielded to pressure from the Biden Administration to censor covid-related content and suppress the Hunter Biden laptop story.

Over the past few years, a growing number of citizens have become familiar with the workings of the “Censorship Industrial Complex,” particularly the roles played by the U.S. government and its intermediaries in academia and nongovernmental organizations (NGOs).  An increasingly sophisticated censorship apparatus has blurred the lines between public authority and private enterprise, as current and former government employees coordinate their efforts with colleagues in Silicon Valley, large universities, and the ever-growing expanse of think tanks, lobbyists, and advocacy organizations. This top-down suppression of organic expression is pushing modern society closer to authoritarianism. 

While the groundwork for this mass perception-management system has been gradually laid over the past few decades, the triple threat of Trump, covid, and the Russia-Ukraine conflict induced new levels of urgency and synchrony, as elites began to panic that their international narrative control apparatus was failing. In the years since however, the growing chasm between elite consensus and reality has burst open fertile cracks of opportunity for new-media entrepreneurs, free-speech advocates and independent thinkers to build parallel systems for popular dissemination of information beyond the desperate clutches of the dying legacy media and its henchmen. The deceptive veil of “combatting mis-and-disinformation” is beginning to fade. With trust in mainstream media and most major institutions at all-time lows, a new generational alliance, freed from the partisan constraints of old, is pressing forward with growing momentum across multiple fronts. 

America’s founders deeply understood that the ability to freely express thoughts is a foundational element of human nature and thus an inalienable human right. To this day, the protections they enshrined in the First Amendment remain one of the best bulwarks against authoritarian censorship ever devised. This constitutionally protected right to unabridged speech is the envy of free-speech advocates worldwide, particularly as censorship regimes have steamrolled over other nations where individual rights and government limitations are not as strongly or explicitly codified. Thankfully, the guarantees in the First Amendment have largely withstood the test of time and the censorious urges of craven politicians, even as their enforcement must often wait for the slow gears of the justice system to fully turn. 

Recent high-profile legal decisions from the Supreme Court in Murthy v. Missouri and the combined Netchoice cases highlight the important role that state governments can also play in speech-related policymaking. The patchwork of pro-and anti censorship policy-making occuring at the state level is an under-appreciated and under-researched area, particularly in a constitutional federal republic like the United States. Across the 50 states, legislators, governors, and attorneys general are constantly at work, often outside the attention of the public and press, developing policies or launching suits that can have an equal, if not more, direct impact on the daily lives of Americans.

Although the power and size of the U.S. federal government vis-a-vis the states has generally grown over the course of the nearly 250-year republic, the national and global dominance of U.S. technology companies means that state-level policymaking can have wide-ranging impacts. When states, particularly large ones, make policies they are often, perhaps intentionally, making policy for the entire country, as businesses operating in multiple states often find it easier to comply nationally with the strictest state laws rather than maintain separate business practices in each state. This phenomenon, colloquially known as the “California effect,” along with the related legal doctrine of the “dormant commerce clause”  is not lost on state policymakers of either party, particularly those opposite the White House, and is often implicitly recognized when federal courts become the chosen venue for the litigation that often follows.

US Supreme Court Justice Louis Brandeis once said, “The states are the laboratories of democracy,” as these 50 legislatures, operating under their own state constitutions, often have more leeway than the U.S. Congress, which operates under the full constraints of the U.S. Constitution and its Bill of Rights. The strategies, ideologies, and processes of these bodies are as diverse as the nation itself, and following and making sense of all this decentralized policymaking can be an enormous challenge. The constant churn of legislation and legal actions across the country is often fad-driven, as hot-button issues fade in and out of the zeitgeist. These patterns are particularly noticeable in the digital policy space, as dozens of states are now pursuing similar bills relating to social media regulation, the use of artificial intelligence and “deepfakes,” particularly in political campaigns, and children’s internet use.

Accordingly, this new research project aims to bring clarity to this dizzying array of legal and legislative activity, with a particular focus on how state-level policymaking impacts digital free speech and expression. By mapping the current and emerging state of play, we aim to assist journalists and other stakeholders to better understand and report threats to free speech, and to enable free speech proponents to better tune and target their advocacy efforts.

One of our core beliefs at liber-net is that free expression of adult citizens is a sacred foundational principle which must be applied to the digital world. As such, we focus our efforts on protecting legal online speech, the restrictions on which would receive strict First Amendment scrutiny from a U.S. court of law.

This report takes an objective approach when it comes to laying out the policymaking activity related to digital speech and content, whether it can be considered pro, anti, or neutral on free speech. Even among free speech advocates the merits of individual policies differ. Rather than take a position on each policy, our goal is to provide readers with information from which they can make their own assessment.

For example, a large percentage of the policymaking activity in this report relates to interventions into social media content regulation, limiting the use of generative-AI, and requiring social media and pornographic websites to use age verification to prevent minors from accessing their content. We understand that stakeholders in the free speech policy space have disagreements, often strong ones, about what constitutes free speech and censorship in these areas, as evidenced by the slew of recent litigation challenging some of these new laws. 

However, we at liber-net are not objective when it comes to advocating for free speech. We believe and acknowledge that attempts to limit content falling under the unprotected speech categories of defamation, fraud, incitement, fighting words, immediate threats to violence, speech integral to criminal conduct, and child pornography are decidedly not censorship. We included bills cracking down on AI-generated child pornography in this report not because we consider these bills to be forms of censorship, but merely to advance the goal of understanding the overall landscape of digital content control. 

Click through the interactive map above to see our coverage of all digital speech-related legislative and legal activity for each state.

Each page covers state legislative and legal activity from 2019 to present. Each bill discussed will include the year introduced, a link to the bill’s page on the legislature’s website, the name and party affiliation of the lead sponsor(s) and bill number. Bills with the year listed immediately after the bill number are those introduced prior to the 2023/2024 legislative sessions. 

• “Introduced” means the bill has been turned into legislative text by the legislative council and filed by the sponsor(s) of the bill to begin the process of consideration, which almost always starts with being referred to a committee of jurisdiction. The vast majority of bills do not progress beyond this point. If a bill does progress, it is then voted on by the committee of jurisdiction, and if passed favorably, heads to the floor of either chamber for a full vote.
• “Key Policymakers” includes legislators who have either introduced a bill that became law, or introduced more than one speech-related bill, whether pro-or-anti censorship, as well as attorneys general who are particularly active.

Information in this report is up-to-date as of September 10, 2024.

While all the state legislatures operate independently from one other, they do not legislate in a vacuum. Policymaking tends to sweep across the country through various trends and phases, particularly in response to technological and political developments. As such, we’ve seen multiple pieces of legislation, often written with very similar language, introduced across many, sometimes a large majority, of US states.

While there is often a common interest group, or groups, with a nationwide scope that works behind the scenes to advance these similar bills, these interest groups are rarely explicitly named in the legislative text or record. As it is beyond the scope and purpose of this initial research to identify and name such actors, we will simply describe some of these common digital-speech related bills below.

Since multiple versions of the same or similar bills are often introduced across single or even multiple legislative sessions, the counts below are by state, not by the number of individual bills:

1) Banning or limiting the use of generative Artificial Intelligence (AI) and/or ‘deepfakes’ in election communications, usually within 90 days of the election, unless a clear disclosure is used. Introduced in almost every state and the District of Columbia, and adopted in 14 states.

2) Creating new criminal offenses for the creation, distribution, and/or consumption of AI-generated child pornography. Introduced in at least 11 states;  adopted in 6 states. Versions have passed both chambers in West Virginia and Pennsylvania.

3) Requiring parental consent and/or age verification for minors to use social media. Introduced in at least 29 states, 21 of which require the use of some form of age verification. Adopted in 11 states, several of which have been successfully challenged in court. 

4) Requiring age verification to access websites with content that is sexual in nature or harmful to children. Introduced in at least 12 states; adopted in 8 states. Also passed both chambers in Arizona but was vetoed by the governor. 

5) Preventing social media companies from removing or censoring candidates for public office, often by creating civil liability enforceable by either private action or the state’s attorney general. Introduced in at least 12 states; adopted in Florida in 2021 but blocked by the Supreme Court in 2024.

6) Preventing social media companies from removing, shadowbanning, or censoring users based on the nonviolent content of their expressions, often by creating civil liability enforceable by either private action or the state’s attorney general. Introduced in at least 37 states. Adopted in Texas and Florida in 2021 but blocked by lower courts and by the Supreme Court in July 2024.  

7) Requiring social media companies to publicly disclose their terms of service and/or content policies. Introduced in at least 8 states; recently passed both chambers in New York, became law in California and challenged in court, and passed in Utah but vetoed by the governor in 2021.

The attorneys general across the 50 states often work together on their policy priorities, more often than not along party lines. These partisan coalitions usually take opposing sides on various legal issues of national importance, although recent bipartisan coalitions have assembled to challenge large social media companies. With one or two attorneys general leading these efforts, many others -often dozens- will add their names. These collaborative actions tend to fall into several forms: defending laws passed by their legislatures from legal challenges, submitting amicus curiae briefs to the Supreme Court or other courts on contentious cases, writing letters to the CEOs of major social media companies and banks opposing certain corporate speech-related policies, and filing lawsuits against Meta, Google, and TikTok. Some notable examples are described below:

Murthy v Missouri and Associated Amicus Briefs. This collaborative effort to sue the Biden Administration for working with social media companies to censor critics of covid policies was initiated by five individual plaintiffs and Missouri Attorney General Andrew Bailey. Former Louisiana attorney general and current governor Jeff Landry joined the suit in 2022. Current Louisiana Attorney General Liz Murrill and Solicitor General Benjamin Aguiñaga participated in the oral arguments before the Supreme Court on March 18, 2024.  On February 9, 2024, Montana Attorney General Austin Knudsen led a coalition of 16 Republican attorneys general in an amicus brief to the Supreme Court supporting Missouri and respondents. Joining him were the AGs from Alabama, Alaska, Florida, Georgia, Idaho, Iowa, Kansas, Nebraska, Ohio, South Carolina, South Dakota, Tennessee, Utah, Virginia, West Virginia, and Arizona legislative leaders. 

In December 2023, New York Attorney General Letitia James led a coalition of Democratic attorneys general from 21 other states plus the District of Columbia in an amicus brief supporting the Biden Administration and urging the Court to reverse the 5th Circuit’s 2023 decision, which ordered the federal government to stop pressuring social media to censor disfavored speech. Joining this Democratic effort were the AGs from Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, MInnesota, Nevada, New Jersey, New Mexico, Pennsylvania, Oregon, Rhode Island, Vermont, Washington, Wisconsin, and DC. 

In June 2024, the Supreme Court ruled 6-3 that the plaintiffs did not have a legal right (known as “standing”) to the preliminary injunction issued by a lower court, which blocked Biden Administration officials from communicating with social media companies. Siding with the Biden Administration’s argument that the plaintiffs had not shown their injuries were directly attributable to the government, the court’s majority cited the lack of any concrete link between the speech restrictions claimed by the plaintiffs and the conduct of government officials. Notably, the justices declined to opine on the merits of the First Amendment claim, merely holding that the plaintiffs had not shown they were directly censored because of government actions. Justice Samuel Alito dissented, in an opinion joined by Justices Clarence Thomas and Neil Gorsuch, suggesting that the case could be “one of the most important free speech cases to reach the Supreme Court in years.” Since the Supreme Court’s ruling in Murthy was based on standing and not merits, it has returned to the lower courts to be re-evaluated for further proceedings. However, in August 2024, a very similar lawsuit filed by Robert F. Kennedy Jr. prevailed on the standing question. In Kennedy v. Biden, U.S. District Judge Terry Doughty ruled that Kennedy and his organization Children’s Health Defense (CHD) had provided sufficient evidence to establish standing by clearly demonstrating that they were censored by social media platforms due to requests from government officials.

Netchoice Challenges to Florida and Texas Social Media Laws, and Associated Amicus Briefs. Netchoice, a consortium of internet companies, led legal challenges to two similar 2021 laws passed in Texas (HB 20) and Florida (SB 7072) that attempted to regulate how social media companies moderate their users and content. Netchoice argued the First Amendment protects their decisions about what speech to disseminate or promote, similar to how it protects the right of newspapers to decide what appears in their pages. In defending the laws, the attorneys general of Florida and Texas argued that social media platforms are modern public squares and that their content moderation activity is comparable to a phone company monitoring calls and shutting off service based on the content of conversations. They also contended that social media platforms are ultimately seeking to avoid any regulation whatsoever, an argument that “if accepted, threatens to neuter the authority of the people’s representatives to prevent the platforms from abusing their power over the channels of discourse.”

The states maintained that their laws do not implicate the First Amendment because they simply require social media platforms to host speech, which is not speech itself but instead conduct that states can regulate to protect the public. The business model for these platforms, the states argue, hinges on having billions of other people post their speech on the platforms, something very different from newspapers creating their own content and publishing it.

Missouri Attorney General Andrew Bailey and Ohio Attorney General David Yost led a 20-state coalition of Republicans in filing a brief supporting the Texas and Florida laws, along with the AGs of Alabama, Alaska, Arkansas, Iowa, Kentucky, Louisiana, Mississippi, Montana, Nebraska, New Hampshire, North Dakota, Oklahoma, South Carolia, South Dakota, Tennessee, Utah, and Virginia, as well as Arizona legislative leaders. 

Meanwhile, New York Attorney General Letitia James led a coalition of 21 Democratic attorneys general in an amicus brief to the Supreme Court supporting neither party. Taking a different, but not opposite approach, their brief defended the ability of states to regulate social media, saying that “social media platforms present significant, diverse, and ever-changing risks to Americans, especially younger generations… states have taken action to protect minors from the risks posed by social media, to enforce data privacy and transparency requirements for platforms.” The Democratic attorneys general urged the Supreme Court to recognize states’ important interests in these areas and to avoid interpreting the First Amendment to immunize social media platforms from regulation. Joining in this brief were the attorneys general of Arizona, California, Colorado, Connecticut, Delaware, Hawai’i, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, Oregon, Rhode Island, Vermont, Washington, Wisconsin, and the District of Columbia.

In July 2024, the Supreme Court unanimously overturned conflicting decisions from two appeals courts and sent them back to the lower courts for reassessment. All nine justices agreed that neither appeals court had conducted a proper analysis of the facial First Amendment challenges, concluding that at least some content-moderation decisions made by the social media platforms are protected by the First Amendment. Much like the Murthy case, this decision did not result in a final, decisive ruling, leaving the future of this type of legislation uncertain. 

21-State Coalition of Republican Attorneys General in Support of National TikTok Ban. On August 5, 2024, Montana Attorney General Austin Knudsen co-led a 21-state coalition urging the United States Court of Appeals for the District of Columbia to uphold the national TikTok divest-or-ban legislation that became law on April 24, 2024. This federal law bans TikTok in the United States unless ByteDance, TikTok’s Chinese-owned parent company, sells its stake in the platform. In response, ByteDance and TikTok filed a lawsuit against the federal government. The attorneys general are asking the court to deny TikTok’s petition, asserting that Congress has the power to act in this matter of national security and foreign affairs. Their letter claims that “TikTok poses significant threats to both national security and consumers’ privacy by indiscriminately collecting user data that could be accessed by the Chinese Communist Party, a longstanding adversary of the United States. Additionally, TikTok’s operations infringe upon Americans’ right to privacy and promote harmful content to minors. Allowing TikTok to operate in the United States without severing its ties to the Chinese Communist Party exposes Americans to the risk of the CCP accessing and exploiting their data.”

Montana Attorney General Austin Knudsen co-led this amicus brief with Virginia Attorney General Jason Miyares and were joined by the attorneys general of Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, New Hampshire, Oklahoma, South Carolina, South Dakota, Tennessee, and Utah.

42-State Bipartisan Lawsuit Against Meta for Harmful and Addictive Features. In October 2023, 42 attorneys general across the country joined in a lawsuit against social media company Meta in federal and state courts, alleging that the company knowingly designed and deployed harmful features on Instagram and its other social media platforms that purposefully addict children and teens. The attorneys general asserted that Meta’s business practices violated state consumer protection laws and the federal Children’s Online Privacy Protection Act (COPPA). The federal complaint, joined by 33 states, alleged that Meta knew of the harmful impact of its platforms, including Facebook and Instagram, and concealed the extent of the psychological and health harms suffered by young users addicted to its platforms. The complaint further alleged that Meta knew that young users, including those under 13, were active on the platforms and knowingly collected data from these users without parental consent. In parallel complaints filed in state courts, eight states have made similar allegations.

These lawsuits are the result of a bipartisan, nationwide investigation led by the attorneys general of Colorado and Tennessee. Nearly all the attorneys general in the country have collaborated since 2021 to investigate Meta for providing and promoting its social media platforms to children and young adults. The multistate coalition that brought this complaint is also investigating TikTok’s conduct on a similar set of concerns. States In the federal lawsuit are Arizona, California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan, Minnesota, Missouri, Nebraska, New Jersey, New York, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Virginia, Washington, West Virginia, and Wisconsin.

19-State Letter from Republican Attorneys General to Chase Bank Urging it to Stop Discriminating Against Customers Based on Religious and Political Affiliation. On May 2, 2023, former Kentucky Attorney General Daniel Cameron led a coalition of 19 Republicans in sending a letter to JPMorgan Chase & Co. (Chase) urging the company to stop discriminating against customers due to their religious beliefs or political affiliations. In their letter, the attorneys general argued that Chase “has not extended its openness and inclusivity to everyone” and pointed out the company’s pattern of targeting and denying service to religious and conservative-leaning customers, such as the National Committee for Religious Freedom. The coalition’s letter also called for greater transparency in how the bank handles viewpoint diversity and called on Chase “to stop its religious and politically biased discrimination and start living up to its commitment to an inclusive society where everyone feels welcomed, equal, and included.” 

Attorney General Cameron was joined by attorneys general from Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, South Carolina, Texas, Utah, Virginia, and West Virginia.

17-State Republican Attorney General Letter Urging Google Not To Censor Crisis Pregnancy Centers From Search Results. On July 21, 2022, Virginia Attorney General Jason Miyares and Kentucky Attorney General Daniel Cameron led a multistate letter to Google expressing concerns about political pressure encouraging Google to discriminate against crisis pregnancy centers in search results, online advertising, and other products like Google Maps. Fifteen other Republican state attorneys general signed onto Attorney General Miyares and Attorney General Cameron’s letter, promising to investigate potential violations of antitrust laws and religious discrimination, should Google yield to this political pressure. Attorneys General Miyares and Cameron were joined by the attorneys general of Alabama, Arizona, Arkansas, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, Oklahoma, South Carolina, Texas, Utah, and West Virginia. 

20-State Republican Attorney General Letter to Biden Administration Opposing Disinformation Board. On May 5, 2022, Virginia Attorney General Jason Miyares submitted a letter to Department of Homeland Security Secretary Mayorkas, joined by 19 other Republican attorneys general, opposing the Biden Administration’s attack on the First Amendment with the creation of a “Disinformation Governance Board.” They argued that this board violates the constitutional freedoms that state attorneys general are responsible for defending. The attorneys general argued that this government watchdog agency would abridge a citizens’ right to express their opinions and disagree with the government, furthering self-censorship rather than protecting freedom of speech, and that the board’s creation is a case of federal overreach. They also argued that there was no statutory authority to support its inception, particularly since the public’s elected representatives were actively debating the issue of disinformation in Congress.

The letter stated that “the Disinformation Governance Board, by its very existence, and almost certainly by design, threatens to enforce silence when Americans wish to express views disfavored by the Administration. It is therefore already chilling free speech and impeding the political process in Virginia and every other state. This is unconstitutional, illegal, and un-American. Unless you turn back now and disband this Orwellian Disinformation Governance Board immediately, the undersigned will have no choice but to consider judicial remedies to protect the rights of their citizens.”

Attorneys general from Alabama, Arizona, Arkansas, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Texas, Utah, and West Virginia joined Attorney General Miyares’ letter.

14-State Democratic Letter Facebook on Vaccine “Mis-and-disinformation.” In October 2021, Connecticut Attorney General William Tong led a coalition of 14 Democrat attorneys general pushing Facebook to disclose whether members of the so-called “Disinformation Dozen” were granted “XCheck” protections to “evade enforcement and spread COVID-19 falsehoods and anti-vaccine misinformation” in violation of Facebook’s rules. In their letter to CEO Mark Zuckerberg, the attorneys general pushed Facebook to disclose whether any members of the “Disinformation Dozen” had received XCheck whitelist protection. The attorneys general also requested information on the extent to which whitelisted content was deemed to be anti-vaccine and how many user complaints regarding such posts had resulted in their removal from the site, among other questions. 

Attorneys general from California, Delaware, Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, Maryland, Pennsylvania, Rhode Island, Vermont, and Virginia joined the coalition. 

Our research has shown that pro- and anti-censorship efforts do not always lie cleanly along partisan lines, particularly as policymakers react to global events. Ultimately, the most important factor is the tenacity and determination of state-level policymakers, particularly attorneys general. Compared to legislators, attorneys general operating under their own authority can strike hard and fast, unencumbered by legislative procedure, partisan disagreement, and episodic scheduling. Particularly since covid and the contentious 2020 election, we’ve seen a growing coalition of aggressive Republican attorneys general sending letters and bringing dozens of suits against the Biden Administration and its allies, many of which relate in varying degrees to digital freedom of speech, the line between coercion and censorship, “de-banking,” and the role of content moderation by large social media platforms. 

Over the last few years, it has largely been Republicans leading the charge against digital censorship efforts from the federal government and “Big Tech”, but this trend is dissipating as national and international events unfold. While a handful of Democratic legislators have introduced or co-sponsored legislation that could be deemed as protecting free speech, most have instead prioritized censorious efforts to curb “misinformation,” disinformation” and “hate speech.” 

Meanwhile, less contentious legislation to curb the use of generative AI or “synthetic media,” particularly in election communications, limit children’s use of social media, and require age-verification for websites with adult and/or sexual material have sailed through with large bipartisan majorities in most states where they’ve progressed to floor votes. Bipartisan coalitions have also assembled to sue Meta and TikTok for their use of addictive features, particularly those targeted at minors, and to support the recent federal law requiring divestment from TikTok’s Chinese parent company. 

The 1925 Supreme Court decision in Gitlow v. New York incorporated and applied the First Amendment’s free speech clause to all state governments equally to the federal government. Nonetheless, the wide spectrum of powers granted by the unique constitutions of each state to their respective governments creates an abundance of options for state officials to pursue, whether they are aiming to expand or limit free speech. But perhaps most importantly, this complex governing ecosystem can make it challenging to understand all the free speech threats and opportunities emanating from so many separate state initiatives. We hope this research effort will help bring some clarity to this complex maze of federalism at a time when free speech faces extraordinary threats across the globe.