State Senate: Republican majority
State House: Republican majority
Governor: Jim Justice (R)
Attorney General: Patrick Morrisey (R)
Summary:
This small, deeply red state legislature has considered a large number of speech-related bills recently. The House recently passed HB 5516 to prohibit the use of “deepfake” images for the criminal invasion of privacy or the unlawful depiction of nude or partially nude minors or minors engaged in sexually explicit conduct, and HB 4963 to limit the use of AI-generated media during political campaigns. It also recently passed HB 4191 to modify the requirements imposed on social media companies to prevent corruption and provide transparency of election-related content made available on social media websites. The bill provides equal opportunities for all candidates and political parties to speak without policy or partisan-based censorship. Bills considered but not yet passed include measures to strengthen free speech on public college campuses, ban financial services providers from denying any person a financial service except to the extent justified by such person’s documented failure to meet quantitative, impartial, and risk-based financial standards, limit SLAPP lawsuits, an “anti-woke” bill to regulate pronoun policies and curricula in public schools, and bill to limit the use of generative-AI in elections.
Key Policymakers:
Legislative Activity:
HB 5516: The purpose of this bill is to prohibit the use of deepfake images for the criminal invasion of privacy or the unlawful depiction of nude or partially nude minors or minors engaged in sexually explicit conduct; establishing such conduct as criminal offenses, subject to criminal penalties. Introduced by Del. Jarred Cannon [R] in Feb. 2024 and passed the House unanimously, now in the Senate.
SB 741: The purpose of this bill is to create the criminal offenses of creating, producing, distributing, receiving, or possessing with intent to distribute visual depictions artificial intelligence created child pornography when no actual minor is depicted. Introduced by Sen. Amy Nichole Grady [R] in Feb. 2024 and passed the Senate unanimously.
HB 4191: The purpose of this bill is to modify the requirements imposed on social media companies to prevent corruption and provide transparency of election-related content made available on social media websites. The bill provides equal opportunities for all candidates and political parties to speak without policy or partisan-based censorship. Finally, the bill upholds the integrity of elections by ensuring election-related content hosted, posted, and made available on social media websites is not monetized or otherwise used or manipulated for nefarious purposes. Introduced by Del. Daniel Linville [R] in Jan. 2024 and passed the House on a bipartisan basis in Feb.
HB 2845 (2021): The purpose of this bill is to permit civil actions by a social media website user for censoring or suppression of social media user’s speech. Introduced by Del. Riley Keaton [R] in March 2021 but did not progress.
SB 369 (2021): The Social Media Censorship Act, creating a cause of action against interactive computer service providers who purposefully censor content that is not obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable subject matter. Republican-only bill introduced by Sen. Mike Azinger [R] in Feb. 2021 but did not progress.
HCR 6 (2021): This resolution calls on the US Congress to join together in a bipartisan effort to amend Section 230 of the US Code in order to protect freedom of speech in the digital age and condemn political censorship in all forms. Introduced by Del. Josh Holstein [R] in Feb. 2021 but did not progress.
HB 5666: The Forming Open and Robust University Minds (FORUM) Act to strengthen existing free expression on campus laws. The bill provides for legislative findings regarding the exercise of First Amendment rights on public university campuses in this state as being critical components of the education experience for students. The bill clarifies the definition of public forums. The bill modifies certain time, place, and manner restrictions. The bill strengthens development of policies and procedures. The bill ensures a reporting requirement and establishes the framework for reporting requirements. Introduced by Del. Laura Kimble [R] in Feb. 2024 but has not progressed.
SB 214: The Fair Access to Financial Services Act. Bans financial services providers from denying any person a financial service the financial institution (FI) offers except to the extent justified by such person’s documented failure to meet quantitative, impartial, and risk-based financial standards established in advance by the FI. Requires disclosure to authorities and denied customer if FI utilizes standards or guidelines based on nonfinancial, nontraditional, and subjective measures such as environmental, social, and governance criteria, or political and ideological factors. Introduced by Sen. Rupert Phillips [R] in Jan. 2024 but has not progressed.
HB 4176: The West Virginia Public Participation Act. The bill provides additional protections to individuals and entities engaged in the exercise of the protected constitutional rights of free speech, freedom to petition, and freedom of association by allowing for the filing of a motion to dismiss in response to strategic lawsuits against public participation. The bill establishes procedures for reviewing strategic lawsuits against public participation and sets forth the applicability and limitations of the defense. Introduced by Del. Mike Pushkin [D] in Jan. 2024 but has not progressed.
SB 870: The Anti-Woke Act or Restoring Sanity Act to prohibit a school district, a public charter school, the West Virginia Board of Education, the West Virginia Department of Education, or any employee of the aforementioned entities from providing instruction in, requiring instruction in, making part of a course, or requiring a statement or affirmation by any employee certain concepts; prohibit a state institution of higher education and an employee of a state institution of higher education from requiring a student or employee to take instruction in, or include in the curriculum of any required course, or require a statement or affirmation by any student or employee that certain concepts are factual and accurate or must be held as a belief of the student or employee; provide that county board and public charter school employees are not required to use student’s preferred pronoun when referring to the student if the preferred pronoun is not consistent with the student’s biological sex; prohibit a state institution of higher education from establishing, sustaining, supporting, or staffing a diversity, equity, and inclusion officer or office; and declare the policy of the state that the administrations of state institutions of higher education, and their administrative units, be officially neutral with regard to certain widely contested opinions. Republican-only bill introduced by Sen. Patricia Rucker [R] in Feb. 2024 and is currently in committee.
HB 4963: Prohibits that a person who disseminates a deep fake or enters into a contract or other agreement to disseminate a deep fake within 90 days of an election is guilty of a crime and may be sentenced in a specified manner if the person knows or reasonably should know that, among other things, the item being disseminated is a deep fake, provides for exemptions, provides for a cause of action for injunctive relief. Exceptions for satire, with disclosure. Bipartisan bill introduced by Del. Josh Holstein [R] in Jan. 2024 and passed the House with a large bipartisan majority in Feb.
SB 469/ HB 4912: This Act adopts the Uniform Public Expression Protection Act (“the Act”) authored by the Uniform Law Commission. The Uniform Law Commission provides states with non-partisan legislation that brings clarity and stability to critical areas of state statutory law. The Act was adopted by the Uniform Law Commission in October 2020 and protects the public’s right to engage in activities protected by the First Amendment without abusive, expensive legal retaliation. Specifically, the Act combats the problem of strategic lawsuits against public participation, also called “SLAPPs.” A SLAPP may come in the form of a defamation, invasion of privacy, nuisance, or other claim, but its real goal is to entangle the defendant of a SLAPP in expensive litigation and stifle the ability to engage in constitutionally protected activities. Introduced by Sen. Mike Oliverio [R] and Del. Wayne Clark [R] in Jan. 2024 but has not progressed.
Legal Actions:
West Virginia Attorney General Patrick Morrisey Supports Google Monopoly Ruling. On August 6, 2024, West Virginia Attorney General Patrick Morrisey said Google is a monopolist and it acted unlawfully to maintain its monopoly, paraphrasing the U.S. District Court for the District of Columbia’s ruling that Google abused its monopoly power over its internet search business. Google paid to keep its search engine as the default mobile search program on leading mobile phones. “This is a big win for consumers and the free market,” Attorney General Morrisey said. “We have maintained all along that we need to bring back digital search competition, a key element for consumers to make educated and rational decisions. A healthy free-market economy thrives on competition not in monopoly.” The U.S. District Court found Google has acted to maintain its monopoly, and it has violated Section 2 of the Sherman Act. Attorney General Morrisey joined the U.S. Department of Justice lawsuit with 34 states, two U.S. territories, and the District of Columbia.
