Utah's Horrible, No Good, Very Bad, Terrible, Censorial 'Free Speech' Bill Is A Disaster In The Making

from the that's-not-how-any-of-this-works dept

A month ago, we noted that a bunch of state legislatures were pushing blatantly unconstitutional bills to try to argue that social media websites can't moderate "conservative" views any more. All of these bills are unconstitutional, and most are just silly. The latest one comes from Utah -- and stunningly seems to have legs as it's been moving through the Utah legislative process with some amount of speed over the last week or so.

The bill, SB0228 from state Senator Michael McKell, is so bizarrely wrong on just about everything that it makes Utah look really bad. It's called the "Freedom from Biased Moderation Act" and already that's a pretty clear 1st Amendment problem. Leaving aside the question of whether or not there's any evidence about "anti-conservative bias" in social media moderation (and, just so we're clear: there is no such evidence), if there were moderation decisions that were biased against political viewpoints that would be protected by the 1st Amendment. For good reason.

Courts have made it clear, repeatedly, that the 1st Amendment bars the government from compelling anyone to associate with speech they disagree with. Yet, that's exactly what this bill, and others like it, are seeking to do. Any law that bars the ability to moderate would violate this key part of the 1st Amendment.

But this bill is even more nefarious, in that it couches many of its proposals in ideas that sound reasonable, but they only sound reasonable to people who are totally ignorant of how content moderation works. A key part of the bill is that it requires social media companies to "clearly communicate" the "moderation practices" including "a complete list of potential moderation practices." That's ridiculous, since many cases are unique, and any company doing this stuff has to constantly be responding to changing context, different circumstances, new types of attacks and abuse, and a lot more. This bill seems to presume that every content moderation decision is an obvious paint-by-numbers affair. But that's not how it works at all. Senator McKell should be forced to listen to Radiolab's Post No Evil episode, which details how every time you think there's an easy content moderation rule, you discover a dozen exceptions to it, and you have to keep adjusting the rules. Every damn day.

Then the bill says that a social media company can not "employ inequitable moderation practices." But what does that even mean? Again, every moderation decision is subjective in some way. When we ran 100 content moderation professionals through a simulator with 8 different content moderation decisions, we couldn't get any level of agreement. Because so many of these are judgment calls, and when you have thousands or tens of thousands of moderators making thousands to hundreds of thousands to millions of these judgment calls every day, you're always going to be able to find some "inequitable" results. Not because of "bias" but because of reality.

And how would you even define "inequitable" in this situation anyway? Because context matters a lot. All sorts of factors come into play. Someone in a position of power saying something can be very different from someone not in power saying the exact same thing. Something said after an attack on the Capitol might look very different than something said before an attack on the Capitol. Every situation is different. Demanding the same treatment ignores that the situations will always be different.

Indeed, just recently in discussing Facebook bending over to keep Trumpists happy on the platform we noted that the company was confusing equitable results with equitable policies. Part of the issue is that, right now, you have more utter nonsense and misinformation on the Republican side of the aisle, and if you use "equitable policies" you will get inequitable results. But this bill seems to think that inequitable results must mean inequitable policies. But that's... just wrong.

Next, the bill requires a "notice" from a social media company for any moderation, that includes an explanation of exactly why that content was moderated. Again, I understand why people often think this is a good idea (and there are times when it would be nice for companies to do this, because it is often frustrating when you are moderated and it's not clear why). However, this only works if you're dealing with non-abusive, honest actors. But a significant amount of moderation is to deal with dishonest, abusive actors. And having to explain to each one of them exactly why they're being moderated is not a recipe for better moderation, it's a system for (1) having to litigate every damn moderation decision as the person will complain back "but I didn't do that" even when they very clearly did, and (2) it's training abusive, dishonest trolls how to game the system.

Then, the bill has this odd section where it basically would attempt to force social media companies to hire Facebook's Oversight Board (or some other brand new entity that does the same basic thing) as an independent review board:

A social media corporation shall engage the services of an independent review board to review the social media corporation's content moderation decisions.

While this might be a good idea for some companies to explore, for the government to mandate it is absolutely ridiculous. I thought the Republican Party was about keeping government out of business, not telling them how they have to run their business. It gets even sillier, because the Utah legislature thinks that it gets to dictate what types of people can be on such independent review boards:

The independent review board shall consist of at least 11 members who represent a diverse cross-section of political, religious, racial, generational, and social perspectives.

The social media corporation shall provide on the social media corporation's platform biographies of all of the members of the independent review board.

If this law actually passed, and wasn't thrown out as obviously unconstitutional, I'd love to see the Utah legislature determining if the mandated review board for... let's say OnlyFans, had the proper "religious, generational, and social" diversity...

As an enforcement mechanism, the bill would give the Utah Attorney General the ability to take action against companies deemed violating this law (which, again, would be every company because it sets up a nonsensical standard not based in reality).

This bill is an unconstitutional garbage fire of nonsense, completely disconnected from anything even remotely recognizable as to how content moderation works at social media companies. Utah should reject it, and maybe should get someone to teach Senator McKell some basics about the 1st Amendment and how social media actually works.

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Filed Under: 1st amendment, bias, content moderation, inequity, michael mckell, utah
Companies: facebook, twitter

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  1. identicon
    Anonymous Coward, 1 Mar 2021 @ 8:36pm

    Re: Re: Re:

    only that they must publish their terms of use and moderation decisions

    It's not just posting their moderation decisions. It's requiring an original moderator to write a reason, then they must allow the person to appeal, then they must employ a completely different moderator to review the appeal, then they must write an explanation why the appeal is rejected, then the user can go to the attorney general's office who determines whether the company has violated its own terms of use and then levees a fine.

    This is a First Amendment violation because the company can't be compelled to allow speech it disagrees with, even if the disagreement is based on an bias. A social media company quite literally has no legal obligation to be "fair" to one view or the other. The loophole to the whole bill is to include a moderation statement in the terms of use that all moderation decisions are biased and then they can never be seen as violating that.

    and apply those rules without discrimination

    This is, quite simply, impossible. Moderation is literally a form of discrimination.

    I used to do comment moderation appeals for a series of popular websites years ago. It was very time consuming to write back to every person who appealed. I had to use a lot of canned responses because it was too time consuming to write a personalized response to every appellant.

    If the company I worked for had to fear getting fined for their moderation practices, they would have just shut down their comment sections rather than risk the loss of money. So the bill (if it could survive a constitutional challenge - which it won't) could lead to shutting down social media, not making it more equitable.

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