It's Not Just Republican State Legislators Pushing Unconstitutional Content Moderation Bills

from the pointing-the-finger-at-the-other-side-of-the-aisle dept

Over the last month we’ve written quite a few times about various state legislatures (and Governors) picking up on the nonsensical and unsupported statements that (1) “conservatives” face too much bias in social media content moderation decisions and (2) that Section 230 is somehow to blame for this. They’ve pushed a whole bunch of blatantly unconstitutional state laws that would seek to limit how social media companies can moderate content — effectively compelling them to host content they disagree with (which would violate the 1st Amendment). Of course, as we’ve noted for quite some time now, both Republicans and Democrats seem to be very mad at Section 230, but for totally contradictory reasons. Republican bills seek to make social media companies moderate less content, while Democratic bills seek to make social media companies moderate more content.

Both approaches are unconstitutional violations of the 1st Amendment. While most of the fights over the past few years have happened in Congress, now with these bad bills moving to the state legislators, it appears that Democrats don’t want to be left behind. Over in Colorado, Colorado Senate president pro tempore Kerry Donovan would seek to force companies to moderate “hate speech,” “fake news,” and “conspiracy theories.”

The full bill is really, really bad. Websites would need to register (for a fee) with a “digital communications commission” in Colorado, and that Commission would accept complaints against social media websites if they were used for hate speech, undermining election integrity, disseminating intentional disinformation, conspiracy theories, or fake news. There’s a big problem with this: most of that is protected under the 1st Amendment. I know that many people don’t like that those things are protected speech, but you actually should like it. Because if “fake news” or “undermining election integrity” was not protected under the 1st Amendment, just imagine how the Trump administration would have abused both things.

After all, it spent four years arguing that any criticism of the administration was “fake news” and claimed, repeatedly (despite the total lack of evidence) that the processes and procedures that helped make the 2020 election fair actually “undermined election integrity.” This is why we don’t let the government punish people for speech around those issues, because the government will define it in ways we dislike.

As Eugene Volokh notes, beyond the fact that all of this is pretty clearly unconstitutional, the bill doesn’t even bother to define “hate speech.” Or “undermine election integrity.” Or “fake news.” Or “conspiracy theories.” Or “intentional disinformation.”

Kerry Donovan is now running for US Congress as well (against conspiracy theorist Lauren Boebert). One would hope that she would have first learned how the 1st Amendment works before seeking to run for Congress. We might agree that Boebert clearly doesn’t belong anywhere near Capitol Hill, but that’s no excuse for misunderstanding some fairly basic principles in the Bill of Rights.

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Comments on “It's Not Just Republican State Legislators Pushing Unconstitutional Content Moderation Bills”

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That One Guy (profile) says:

Someone has a non-existent memory

Nothing like proposing a law that beyond ‘just’ being unconstitutional the last four years make clear is an absolutely terrible idea, because even if you trust those currently in power to use it responsibly if you wouldn’t trust your worst enemy with it then that’s a good sign that it’s a bad idea.

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Anonymous Coward says:

Re: Someone has a non-existent memory

Marketers, politicians, and liars have no memory – they just go with what sounds the most flattering to the zeitgeist of the moment.

Why yes they were totally for being tough on crime when it was en vogue and they were totally for rehabilitation when "stopping misguided youth from becoming professional criminals" was en vogue.

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Anonymous Coward says:

While its great masnick is calling out bad left wing ideas, he still can’t seem to let trump go. Trump didn’t censor things. he may have complained about them, but he tried to control speech the way the left does today. Hate speech, undermining election integrity, disseminating intentional disinformation, conspiracy theories, or fake news will basically mean whatever Democrats don’t like.

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Stephen T. Stone (profile) says:

Re:

Didn’t Old 45 suggest the NFL should fire Colin Kaepernick and other players who protested against police brutality because those players took a knee during the National Anthem? Or was that some other 45th president of the United States who referred to those players as sons of bitches?

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Stephen T. Stone (profile) says:

Re: Re: Re:3

I was attempting to show their hypocrisy but I must have failed

The phrasing of your post implicated you as thinking Kim Davis was “protesting” when she was refusing to follow the law and treat all citizens equally — which also implies a defense of Davis’s actions.

Bad execution overrides good intent. Next time, aim for clarity instead of cleverness.

Stephen T. Stone (profile) says:

Re: Re: Re:

Kim Davis refused to serve gay people equally under the law. She did so to “protest” the newly recognized right of same-sex couples to marry.

Colin Kaepernick knelt during the National Anthem, which played before the football games he was hired to play. He did so to protest police brutality across the country.

You’ve let your sociopolitical biases cloud your judgment. I mean, you’re literally defending a bigot here. Irrational cruelty is not a virtue, and reasoned dissent is not a vice.

PaulT (profile) says:

Re: Re: Re: Re:

"For example, Kim Davis."

Kim Davis, the moron hired by the government who refused to do her job in order to protest? You’re claiming that’s the same as someone working for a private company protesting in a way that doesn’t interfere with their job in the slightest, until the president gets his panties in a twist and demands he be fired for exercising his free speech?

I know someone as obsessed with being wrong all the time as you are thinks this is a good argument, but, I hope you understand why everyone is laughing at you for being wrong again.

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That One Guy (profile) says:

Re: Re: Re:2 Re:

To go from boasting that so many seats had been reserved that the building would be packed and he’d have to do a second speech after for those that couldn’t fit in to him and everyone else seeing empty seats for days come the actual rally must have been like a kick to the balls for a narcissist like him, and that’s a thought that will never stop being funny even if the petty vengeance and gross abuse of power that followed did take some of the shine off.

ECA (profile) says:

what?

"limit how social media companies can moderate content — effectively compelling them to host content they disagree with (which would violate the 1st Amendment). "

Who gave the companies Constitutional rights?
The thing about that, is the gov. could give permission to LEt all posts stand as written. Allot of companies would love that and Hate that.
Less monitoring. Less employees.
Stopping spam is a 24/7 job and pretty easy. But both sides Want Proof of something(Who knows what).

Its like 1 side wants everything to seem SUNNY and great.
The other just dont know HOW NOT to restrict speech.

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Michael says:

Re: what?

"Who gave the companies Constitutional rights?"

The 1st Amendment, which doesn’t specify that rights only apply to individuals, followed by the 9th Amendment, which is self-explanatory.

Go back to civics class, and on your way take some English lessons.

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WRONG, you anti-American corporatist! says:

Re: Re: what? -- WHO is covered? "We The People"!

The first three words of the Constitution specify WHO is covered: "We The People".

Corporations are nowhere even hinted. NOT mentioned is NOT an INCLUSIVE term.

ONLY LAWYERS making up out of the blue a new "legal doctrine" have granted "rights" to corporations. There is ZERO statute explicit on the point.

Corporations don’t exist at all until get permission from "natural" persons, having promised to OBEY our rules and SERVE us. Period.

Corporations are then SUBJECT TO the whole panoply of Commercial Law in ways that individuals are not, clearly establishing status is merely that of legal fictions, having only privileges revokable at any time.

Corporations can be taken apart down to atoms without doing least injury to Constitutional principles. Corporations are mere FICTIONS.

And as practical fact, you don’t spew such tripe except in this corporate-friendly venue because you know full well that nearly everyone will reject it. Ask Mitt Romney how well "corporations are persons" goes over.

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R.H. (profile) says:

Re: Re: Re: what? -- WHO is covered? "We The People"!

The Constitution doesn’t grant rights to people, it forbids the Government from performing certain actions. That being said, the American legal system is based on all things being allowed that aren’t specifically made illegal. So, if corporations aren’t specifically forbidden from doing something that a natural person is also not forbidden from doing then they can do that thing. If the law doesn’t specifically remove a right from corporations that natural people have, then they still have that right.

All of this is because the law created corporate personhood and hasn’t limited it in the ways that you think it has. If you believe that corporate personhood should be limited, that’s fine. You should speak with your elected officials about some changes. Until then though, corporations have most of the same rights that you or I have and many of them have the money to more easily afford to exercise those same rights. (For example, most of us can’t afford to run political advertising ourselves but, we certainly have the right to do so.)

Glenn says:

Governments cannot tolerate that there are companies out there that have more power and influence than they–the governments–perceive themselves as having. Privacy? Governments will invade anyone’s privacy on a whim, giving any reasons that suit them; the companies only use data freely given to them by people. The governments will take any steps they can to enforce the control that they perceive as slipping away. The funny thing? …they never had the power or influence or control to begin with. All power, all influence, all control rests with the people–the dupes who believe the lies told by Republicans who seek nothing short of a country controlled by them alone as well as the more rational people who understand the truth. Sadly, they’re all idiots with few exceptions.

The Internet’s biggest success is also its greatest failure. It shows us ourselves for who and what we are–all the beauty and all the ugliness. Either way, though, each of us has the right to be who we choose to be, to believe what we choose to believe. No one requires anyone else’s approval to exercise that one inalienable right: each person’s life belongs entirely to that person. When "content moderation" seeks to excise that from view… well, that’s just tragic.

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R.H. (profile) says:

Re: Re:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Did you catch the part I emphasized there? "Congress shall make no law…" Google is not Congress. Twitter is not Congress. Facebook is not Congress. Since none of those companies is either owned by or a department of the government (either federal, state, or municipal), the First Amendment doesn’t apply to them. This point has been made repeatedly by many people but I’ll assume the best and assume that you haven’t learned this little piece of Constitutional law yet.

thejynxed (profile) says:

Re: Re: Re:

The real core of the problem is that the Federal government has more than muddied these waters in recent decades by mandating that certain companies do have comply in this fashion, for instance defense contractors and certain other private companies that receive taxpayer dollars for use in their operation via government contract. Recent Presidents have used EOs to ensure certain companies and even religious organizations follow certain rules established by Congress that were created to regulate government agencies and their employees. SCOTUS has refused to visit any case that challenge these actions.

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Stephen T. Stone (profile) says:

Re:

Moderation is a platform/service owner or operator saying “we don’t do that here”. Personal discretion is an individual telling themselves “I won’t do that here”. Editorial discretion is an editor saying “we won’t print that here”, either to themselves or to a writer. Censorship is someone saying “you won’t do that anywhere” alongside threats or actions meant to suppress speech.

Now, which one of those applies to Twitter banning some racist wastebasket over their use of the n-word??

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PaulT (profile) says:

Re: Re:

"Lol big tech companies not being able to censor speech they don’t like is against the 1st amendment?"

Yes, the government compelling private entities to host speech against their will is against the first amendment, as that’s directly against the free exercise of speech and assembly enshrined in the constitution.

Do you need remedial lessons about it? I swear, it’s embarrassing how much more about the document I seem to know than people who are supposed to have been taught about it throughout childhood.

Scary Devil Monastery (profile) says:

Re: Re: Re:

"I swear, it’s embarrassing how much more about the document I seem to know than people who are supposed to have been taught about it throughout childhood."

This is one of the many reasons I’m giving up on the US as a whole. 1 out of 3 people aren’t literate enough in their own language to understand their own constitution at a level most european grade school children could, even when reading that foreign document in a language not their mother tongue.

A nation divided against itself can not stand. It’s fortunate the division seems to be between the sane and the village idiots, of which there is a tragic surfeit.
Because the only thing keeping the US out of another civil war by now would be that 73 million americans are such gormless morons their attempted "coup" ended with the coup leaders posting selfies of themselves committing high crimes…and some joker shitting on the rotunda floor.

Bill Maher’s "New Rule: Losing To China" on youtube or HBO, brings it all down to perspective. The US seems hell-bent on regressing to when it could still claim some of the hype – around early 19th century – and seems content with that.

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Hot FeOOH says:

Re: Re: WRONG as usual, "PaulT".

Yes, the government compelling private entities to host speech against their will is against the first amendment, as that’s directly against the free exercise of speech and assembly enshrined in the constitution.

NO, actually, self-praising smartypants, happens every day for corporations that are regulated as utilities. We don’t allow ISPs / common carriers to do this!

My view is that mega-corporation "platforms" should regulated as utilities. Since they’re only legal fictions, requires only a few words of federal statute to make that so — though, sure, it’d be strongly opposed by the fascist legal fictions with their armies of lawyers!

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PaulT (profile) says:

Re: Re: Re: WRONG as usual, "PaulT".

"We don’t allow ISPs / common carriers to do this!"

ISPs and common carriers are completely different things, and that also has nothing to do with the platforms you whine about.

Why is it that whenever you try to smugly proclaim me as wrong, you just further expose your own ignorance?

"My view is that mega-corporation "platforms" should regulated as utilities"

I agree that ISPs should be common carriers in order to protect net neutrality. I don’t agree that small ISPs should be exempt from rules just because of their size, and I certainly don’t agree with your ultra-communist view that private property should be stripped from those who disagree with you politically and placed in control of the state.

This comment has been deemed insightful by the community.
bhull242 (profile) says:

Re: Re:

I think you missed the part where this particular article is about a bill that would force tech companies to do more moderation.

And no, companies moderating content on their privately owned websites and servers is not against the 1st Amendment as they are not in any way a government or part of the government; rather, between the 1A right against compelled speech and the 1A right of association, not allowing companies to moderate speech on their websites is against the 1A. Again, there are court cases that point to this being the case.

And no, private companies removing unwanted content and/or users from their privately owned websites and/or servers is not censorship, either. There is a difference.

Look, I am no fan of Twitter or Facebook; I mostly left them a long time ago. However, I know how to read the whole article rather than just the introduction, I know what the law is on this issue, and I know what words mean. I don’t think you do.

If there was a white supremacist platform for user content owned and operated by a single private citizen who was also a bigot or by a corporation run by a bigot, and that platform removed speech that didn’t conform with those ideals, while I would find the platform to be, at the very, very least, distasteful, and more likely hateful and abhorrent, I would still defend their right to exist, say such horrible things, and remove content they dislike even if I think that content is perfectly fine. I wouldn’t support or use such a platform, and I would likely heavily criticize it both publicly and privately, but I wouldn’t want the government to ban it entirely or stop it from moderating content on the platform however it sees fit. That’s how the 1A and private-property rights work. I also wouldn’t say that they’re censoring anyone or violating anyone’s 1A rights. It doesn’t matter how big or small it is (though if such a platform got even close to as large as either Facebook or Twitter, I’d be admittedly shocked and dismayed at the state of humanity); I’d feel the same on the issues of 1A rights, private property rights, and government interference with such either way.

Scary Devil Monastery (profile) says:

Re: Re:

"Lol big tech companies not being able to censor speech they don’t like is against the 1st amendment?"

Yep. And proving that you didn’t read the constitution won’t change that.

Here’s the thing – 1A applies to government. Never to private individuals.

Therefore no privately owned platforms can ever violate 1A – but forcing them to host speech selectively by law surely is that very violation of 1A you were looking for.

Seriously, how badly educated are you right-wing nutbags if a european knows your own constitution better than you do?

Anonymous Coward says:

There is security theatre, acts that do not protect anyone but might look good,
Now there’s political theatre, politicians making up bills that target big tech Google Facebook about moderation , content
, bills that are clearly not likely to pass because they put limits on free speech and are contrary to the first amendant
Would would hope that Democrats would be above this pointless exercise
It’s like years ago there were attempts to pass bills targeting
violent videogames which never went anywhere
Even if these laws passed they would not effect websites based outside America
And of course laws like this would stop startups from offering
new services or apps
since they cannot afford to employ 1000s if moderators

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