Senator Klobuchar Proposes An Unconstitutional Law That Would Kill Legions Of People If Trump Were Still President

from the self-evident-unconstitutionality dept

This bill is so bad it was worth a second post.

There is a reason that the Constitution contains the provision, "Congress shall make no law […] abridging the freedom of speech." And this new bill proposed by Senator Klobuchar (who really should know better) gets at the heart of it. Because what her bill would do is make a law that, at its core, pointedly interferes with freedom of speech by allowing the government to penalize certain expression. And there is absolutely no reason to believe that its choices for which speech to favor will be sound and healthy ones for society. In fact, given the performance of the previous presidential administration, there's plenty of reason to believe the result would be the exact opposite.

The mechanics of this interference are fairly straight forward. Her bill, "The Health Misinformation Act of 2021," would condition Section 230's platform protection to apply only to platforms that moderate user content as the government has decreed they should moderate it. The constitutional problems with this scheme should thus be readily apparent: First, it directly violates platforms' First Amendment rights to moderate user content as they see fit by effectively forcing them to moderate content as the government has decided they should, lest they risk the loss of a critical statutory protection they otherwise would have had. Secondly, the bill inherently allows the government to put its thumb on the scale of deciding which points of view are the allowed ones and which are the ones subject to legal penalty, which obviates freedom of speech since some ideas are obviously no longer effectively free to be expressed if they can attract a censorial government-induced penalty.

The Klobuchar bill would like to pretend that the means somehow justify the ends. The government certainly has a legitimate interest in keeping the population alive and healthy, so it's not an inherently corrupt goal she's trying to further with this bill. She just wants to suppress medical misinformation that has been prolonging the pandemic.

But there's nothing about the bill that confines it to such benevolent purpose. There can't be, because that's not how government power works, which is why we have the First Amendment because we always need to be able to speak out against the government when it gets things wrong.

And we know it gets things wrong. It has gotten things wrong even just with respect to this particular health crisis that the bill is supposedly limited to. At best it made innocent mistakes, like when it discouraged masks early on in the pandemic. But then there were people in the highest offices of government touting hydroxychloroquine snake oil and discouraging social distancing. There are still people in government discouraging vaccines. How can we possibly have a law where the government gets to decide what speech is favored or not when the government itself has, even within the very same health crisis that this bill is supposedly limited to, been so conspicuously unable to reliably make those choices competently? This crisis has already outlasted one administration, and while this one might like to keep people alive with credible, scientific information, the last one did not, and who knows what might be in store with the next one. But this bill would empower a Trump Administration as much as a Biden Administration to take away the right and ability of the public to speak out against its mistakes, no matter how deadly they may be. Because a government that can force platforms to only allow, for example, pro-vaccine messages on its systems can just as easily disallow them as well. And if it does, people will die.

Furthermore, if a bill like this could be allowed for this crisis, it could be allowed for any. The government can always articulate some reason for why free expression needs to be curtailed. And throughout history it has regularly tried. A law like this, if it could get on the books, would signal it to keep trying on every policy issue that can possibly bear on our lives and the security and stability of our country – which is effectively all of them. Because today it's health misinformation the government is unhappy about. Tomorrow it could be elections. Policing. Terrorism. The draft. Even potentially something as banal as tax policy. There's always a reason the government can cite for why society should not be exposed to ideas out-of-step with what it has decided are the better ones.

But it's the people's job to decide, not the government's. Per the constitution, it's not allowed to be the government's job. The Founders got the government out of the business of choosing which views could be permitted which could be punished with its "make no law" admonishment because there is no way for the government to pick the winners and losers in the marketplace of ideas and not risk serious damage to discourse, and with it the democracy that depends on it.

And everyone in government needs to remember that.

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Filed Under: 1st amendment, amy klobuchar, ben ray lujan, content moderation, free speech, health misinformation, misinformation, section 230

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  • icon
    Bob Wyman (profile), 26 Jul 2021 @ 12:54pm

    Protocols, Not Platforms. We must find a way to lead...

    Perhaps I give her to much credit, but I assume that Klobuchar is not an idiot and thus that she recognizes the danger in her proposal. Thus, I am tempted to see this bill as an act of desperation more than as a well-considered approach to a general problem. Klobuchar is not the only one getting desperate. The failure of the technical community to lead by coming up with concrete proposals to address the problem of misinformation and credibility within the constraints of our Constitution is something that I think we will long regret.

    So, how many people who read these posts, or write their own, are actually part of the process of solving these issues? If you don't work at Facebook, Twitter, or Parler, are you at least involved in industry forums dedicated to crafting solutions? Are you a member of the W3's CredWeb ( working group? If not, why not? If you're working with some other group, what is it and how can others of us get involved in helping to define the protocols, features, or systems that might make it possible to mitigate this problem sufficiently so that we don't have to see desperate proposals like Klobuchar's being taken seriously?

    bob wyman

    reply to this | link to this | view in chronology ]

  • identicon
    Jordan, 26 Jul 2021 @ 1:02pm


    Even if you could talk to this person and explain the legal ramifications they would lie to your face and claim they're being mis understood.

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 26 Jul 2021 @ 1:09pm

    Not such a good idea now is it?

    As with all pushes to give the government more power the one question she should ask herself is 'Would I be happy with my worst enemy being able to make use of this power the day it's put in place to the fullest extent that it even might be reasonably stretched?'

    If, as I suspect/hope the answer to that would be 'no', she would not be happy with a government run by the opposing party having this power, that's a good sign she shouldn't be creating it. If the answer would be 'yes' then that would merely serve as even more proof just how short-sighted and naive(or worse, power hungry) she is being here.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 26 Jul 2021 @ 1:15pm

      Re: Not such a good idea now is it?

      "As with all pushes to give the government more power the one question she should ask herself is 'Would I be happy with my worst enemy being able to make use of this power the day it's put in place to the fullest extent that it even might be reasonably stretched?'"

      This is the dilemma. The US would almost certainly be far better off as a society if people were forced to have vaccinations, if people with insanely large and unnecessary weapons arsenals had the surplus confiscated, lock up deliberately corrupt white collar thieves, etc. But, the moment the opposing party were in power they would use those same powers that had been established to make lives materially worse for others.

      Herein lies the problem with so many people trying to compromise when no compromise is available. It's pointless to try that with people who have announced they would rather see the country burn than reach a reasonable compromised position. But, the moment you decide that compromise is not the answer and you dictate positions, you hand power to those people to do ore harm when the tables turn, and they always do.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Jul 2021 @ 1:12pm

    Everyone can come up with an excuse for why their pet issues should get an exception. But free speech is only free if there are no exceptions. The freedom to say whatever the government approves of is no freedom at all.

    reply to this | link to this | view in chronology ]

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