of the a surprisingly not terrible bill dept
Now that the House of Representatives has (barely) control of the Republican Party, we expected a lot of stupid anti-tech legislation (Democrats are also pushing stupid anti-tech legislation, but of a different nature). The GOP has produced a long list of bills as part of its “Big Tech” platform in recent years, and most of them are ridiculous and often unconstitutional (and many of them contradict each other). Additionally, it was noted that part of Speaker McCarthy’s negotiations with hardliners who initially withheld their votes to become Speaker included the creation of a goofy special committee to “investigate” the state’s “weaponing” of social media. This has happened.
So I fully expected that the first tech-related bills to come out of the house would be pretty dumb. But… I’m actually a bit surprised. Reps. James Comer and Cathy McMorris Rodgers have introduced a bill to prevent the government (amusingly, their press release focuses on the Biden administration without indicating that such a bill would theoretically bind future governments of both parties) from “pressure exercise on social media”. Company” in her moderation.
And by and large, actually me like the concept the bill. The government shouldn’t put any pressure on it everyone regarding their moderation decisions. Of course, this kind of pressure is already a First Amendment violation, but when it’s explicitly enshrined in a law like this, you avoid the more difficult First Amendment route. The gist of the bill:
General – An employee may not –
use the employee’s official authority or influence to cause a third party, including a private entity, to take action to censor speech.
There are a number of caveats and definitions in the bill, but…yes, in general, any of those would likely be (or very close to) a violation of the 1st Amendment. I am concerned about the inclusion of “influence” here because it is never a First Amendment violation for the government to use the mob pulpit to attempt this persuade Businesses or individuals doing things, they do it all the time. The 1st Amendment question – as courts have repeatedly noted – only comes into play when there is some kind of Obligation, usually in the form of a threat of punishment. However, merely attempting to exert influence is common practice for government.
The real problem, however, is that many people insist (wrongly) that there is evidence the Biden administration was already busy forcing companies to “censor” even though the details suggest otherwise. That’s not to say the government hasn’t taken counterproductive direct action, or screwed up the messages of its initiatives enough to allow malicious actors to lie and pretend censorship is in progress.
And yes, the White House should stop doing this.
Trump’s White House, of course regularly would have broken that law by requiring social media companies to moderate it you wanted, but we leave that aside too.
The big problem with the bill lies in some of the gray areas of the definitions. If the White House only talks about foreign interference or election disinformation, would it be considered “affecting” social media to remove that content? Because if that were the case, that would of course be ridiculous.
Given the current First Amendment precedent, the government’s speech must contain a genuine coercive aspect, including some sort of threatening implication, for disobeying and taking down the speech in question. So the concern with this bill is that the broad concept of “influencing” social media could destroy what should be perfectly normal, valid government policies in the area of public education.
However, a calculation like this could have been much worse. In fact, considering the other things the GOP has been saying lately, I was expecting it to be a lot worse.
This bill is unlikely to go anywhere, of course, but kudos to Reps. Comer and McMorris Rodgers for actually introducing a bill that appears to be primarily focused on actually strengthening First Amendment protections.
Filed under: 1st Amendment, Cathy McMorris Rodgers, Content Moderation, Influence, James Corner, Social Media
