GOP Senators Release Latest Truly Stupid Section 230 Reform Bill; Would Remove 'Otherwise Objectionable'; Enable Spamming

Legal Issues

from the this-is-not-the-reform-you're-looking-for dept

Honestly, you’d think that the Senate might have a few more important things to be working on right now than introducing what has to be the… what… 8th bill to try to rewrite Section 230 of the Communications Decency Act this year? Either way, three Senators on the Commerce Committee have released yet another truly ridiculous attempt at reforming Section 230. Senators Roger Wicker, Lindsey Graham, and Marsha Blackburn are the three clueless Senators behind the ridiculously named “Online Freedom and Viewpoint Diversity Act.”

Before we dig deeper, I should remind you that Marsha Blackburn hates net neutrality with the passion of a thousand suns. Hell, she even put together this lovely video nearly a decade ago where she sings the praises of the open internet, and companies like “Facebook, YouTube, Twitter.” And then she says: “There has never been a time that a consumer needed a federal bureaucrat to step in to intervene.”

So, anyway, federal legislator Marsha Blackburn, along with Senators Wicker and Graham have decided to “intervene” in order to attack Facebook, YouTube and Twitter, because those companies are moderating their private property in a way that these Senators don’t like. It seems that they want… a bit more… what’s the word I’m thinking of? Oh, right, “neutrality” in how content moderation works.

Blackburn’s press release quote is particularly hilarious after what she said about net neutrality:

…the contentious nature of current conversations provides perverse incentive for these companies to manipulate the online experience in favor of the loudest voices in the room. There exists no meaningful alternative to these powerful platforms, which means there will be no accountability for the devastating effects of this ingrained ideological bias until Congress steps in and brings liability protections into the modern era.

Oh really? Wicker’s quote is just as dumb:

?For too long, social media platforms have hidden behind Section 230 protections to censor content that deviates from their beliefs,? said Wicker. ?These practices should not receive special protections in our society where freedom of speech is at the core of our nation?s values. Our legislation would restore power to consumers by promoting full and fair discourse online.?

No, Senator, they’ve relied on the 1st Amendment to do that. You know, the thing you swore an oath to protect and defend? Even without Section 230, internet platforms would have every right to take down content. Indeed, they’d likely do so more often to avoid having to fight over it in court.

Meanwhile, Senator Graham’s quote just emphasizes that this legislation is designed to violate the 1st Amendment:

?Social media companies are routinely censoring content that to many, should be considered valid political speech. This reform proposal addresses the concerns of those who feel like their political views are being unfairly suppressed.?

See, here’s the thing about the 1st Amendment, Senator, it means that you don’t get to decide what is and what is not “valid political speech.” It also means you can’t compel speech, meaning you cannot compel private companies to host speech they don’t want.

So what does this silly and unconstitutional bill do? Not what it’s backers think. The key part is that they want to limit the liability protections for moderation to a very specific list of things that the government deems okay to moderate. We’ll get into why that’s unconstitutional shortly, but it is. The first part is that it tries to reinvigorate Section (c)(2) (and then cut it down). If you don’t recall, (c)(1) is the part that says a website can’t be held liable for third party content. (c)(2) then says that a website can’t be held liable for moderation choices. In practice (c)(2) is never used, because courts have determined that holding a website liable for moderation practices would also be making them liable for third party content. So (c)(2) rarely even gets brought up in court.

So this bill first rewrites (c)(1) to say that it “shall not apply to any decision or agreement made or action taken by a provider or user of an interactive computer service to restrict access to or availability of material by another information content provider.” And then further says that any immunity for moderation can only be protected under (c)(2). Then, it totally neuters (c)(2). First, it changes the part that says a website or user can moderate if it “considers” the content “to be” a long list of things “or otherwise objectionable” and now says it has to have the “objectively reasonable belief” of those things — but without the otherwise objectionable part. It would strike the term “otherwise objectionable” from (c)(2)(A) and replace it with: “promoting self-harm, promoting terrorism, or unlawful.” That would then make it say that (new parts in bold):

No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user has an objectively reasonable belief is obscene, lewd, lascivious, filthy, excessively violent, harassing, promoting self-harm, promoting terrorism, or unlawful.”

So… the end result is that moderation decisions would no longer be protected under (c)(1), and without the “otherwise objectionable” only a limited number of categories of content would get this protection under (c)(2). Note that “posting disinformation,” for example, would no longer be covered. So, under this, Section 230 would no longer protect a website if it pulled down disinformation about, say, an election. Or COVID safety. Also it would seem to remove spam from 230 protections.

Of course, sites would almost certainly still be protected under the 1st Amendment, but it would be a hell of a lot more expensive for companies to defend against a slew of vexatious lawsuits regarding their moderation practices. This would be a full employment bill for tort lawyers (remember when Republicans used to whine about tort lawyers and their vexatious lawsuits?).

Finally, the bill would also change the definition regarding what constitutes an “information content provider.” The law has always said that an ICP is anyone “that is responsible, in whole or in part, for the creation or development” of the content in question. Thus, in the Roommates.com case, Roommates was found to be the ICP for the content that potentially violated the Fair Housing Act, and therefore did not get 230 protections over that content (but did get 230 protections over actual 3rd party content).

In the new bill, it tries to redefine the “being responsible” bit to say that it “includes any instance in which a person or entity editorializes or substantively modifies the content of another person or entity.”

You can think of this is the “make Twitter liable for fact checking Trump” clause. Of course, as I’ve argued in the past, the content of Twitter’s fact check was never protected by 230 in the first place. Because it created that content. However, that content is 100% protected by the 1st Amendment. As would almost all content moderation decisions even under this bill.

So this bill would create a bunch of wasteful litigation and probably end up in the same basic place: platforms still able to moderate content, though they could face more expensive lawsuits about it all.

But it’s also worth highlighting that the bill itself is obviously unconstitutional. By limiting the types of content that gets immunity protections, these three Senators have created a bill that is literally the opposite of content neutral. The Supreme Court has made it clear that you can’t pass laws that are not content neutral. And this bill explicitly is not — saying that only certain types of pre-approved content get legal protections (even if the content itself is legal), and others don’t. That’s a huge 1st Amendment no-no. In Ward v. Rock Against Racism, the Supreme Court said it pretty clearly:

Government regulation of expressive activity is content neutral so long as it is “justified without reference to the content of the regulated speech.”

Yet here, the content is directly referenced, with a list of acceptable moderation reasons.

Either way the end result here is that (1) the bill is obviously unconstitutional, (2) it won’t create more speech online, (3) won’t stop Trump and his fans from getting fact checked, but (4) might lead to a bunch of wasteful litigation that will lose in the end, and (5) might destroy niche communities, and (6) encourage spam.

Those last two are kind of important. Because it would mean that niche communities might face vexatious lawsuits for moderating merely off-topic content. And it would mean that nearly all spam filtering is no longer protected by 230. Again, in the long run, they’d likely be protected under the 1st Amendment, but boy would there be wasteful litigation in the middle.

Anyway, I’m only moderately amused that this ridiculously unconstitutional piece of garbage, which focuses on the removal of the phrase “otherwise objectionable” happens to be released the day after we released “otherwise objectionable” merchandise. I guess get it while it still matters?

Filed Under: cda 230, content moderation, intermediary liability, lindsey graham, marsha blackburn, moderation, otherwise objectionable, roger wicker, section 230