Rep. David Cicilline says he’s drafting a bill that would remove Section 230 liability protection for online platforms, such as Facebook and Twitter, for publishing “demonstrably false” political advertisements. In threatening social media companies with punitive laws due to their alleged danger as “fake news” propagators, the Rhode Island Democrat joins notable members of his party, including presidential front-runner Joe Biden and Sen. Elizabeth Warren.
While the full text of Cicilline’s bill isn’t expected until later this month, it’s nonetheless clear that these attacks on free speech and tech companies have unintended implications. Removing liability protections would be dire for free online discourse and could cause the greatest damage to those who challenge the narratives of those in power.
The first problem with these crackdowns on speech and political advertisements is that they’re likely to be unconstitutional.
In 2012, the Supreme Court clarified that content-based speech restrictions cannot include general proscriptions against false statements since some false statements are inevitable where there’s an open and vigorous expression of views in the public and private spheres.
Politicians of both parties trumpeting their crusades against the supposed influence of big bad tech companies on our discourse inevitably seem to take on a partisan slant that accuses ideological enemies of not playing fair and treats the public as hapless. Republican Sen. Josh Hawley, like Cicilline, is pushing a variety of efforts to regulate social media companies and revoke protections afforded to them by Section 230.
The second problem is just as fundamental: Who decides what is “demonstrably false” and on what basis?
This would likely fall to “content moderator” teams employed by platforms such as Facebook. In this scenario, only the biggest players in the industry would have the necessary resources to vet every online advertisement. The long history of overzealous censorship and poor or inconsistent decision-making by these supposedly independent moderators is well-known. It’s likely to worsen if companies are pressured with exorbitant fines.
Even so-called independent fact-checking services have frequently been accused of engaging in bias.
Some have acted overzealously in “fact-checking” even clearly satirical articles, which could be just the beginning if platforms are held responsible for vetting advertising. It could mean that using satire, one of the most effective and engaging forms of social commentary, to advocate for particular politicians or causes could attract censorship if a bureaucrat or moderator could simply note that satirical statements are “demonstrably false.”
Cicilline’s attack on political speech could cause the greatest damage to causes and issues debated intensely.
For example, public health advocates who support vaping products that help smokers quit using tobacco products, which are more harmful, are routinely undermined by reactionary statements from government agencies. The government’s actions wrongly linked legal vaping products to lung injuries caused by black market products with vitamin E acetate. Would tech companies’ moderators have been willing to label the government’s own claims as false and misleading?
One academic journal recently retracted a study by taxpayer-funded, anti-vaping academic Stanton Glantz due to the shoddiness of his research — but only after a mountain of online pressure from advocates and scientists. It’s easy to envisage important articles debunking these kinds of claims being labeled “false” by content moderators afraid of the government, thus undermining robust and important public debate.
It is the advertisers who make false statements who should be held liable for their claims, not the tech businesses that provide platforms for discourse. Encouraging powerful platforms to exert their “disproportionate” influence even further through censorship and moderation would hurt the very citizens these politicians claim they want to protect.
Satya Marar is a policy analyst at Reason Foundation, a Young Voices tech fellow, and contributor to the Washington Examiner’s Beltway Confidential. Follow him on Twitter: @MisterJEET.
