Senators Klobuchar And Lujan Release Ridiculous, Blatantly Unconstitutional Bill To Make Facebook Liable For Health Misinformation

from the stop-this-nonsense dept

On Wednesday, Senator Amy Klobuchar promised to introduce a bill that would somehow hold Facebook liable for medical misinformation. As we wrote in the post about her claims, that doesn’t explain how there would be any legitimate underlying cause of action, because nearly all such medical misinformation is still protected by the 1st Amendment.

Yesterday Klobuchar, along with Senator Ben Ray Lujan, introduced their bill: the Health Misinformation Act of 2021. To say it’s unconstitutional would be giving it too much credit. To say that it wouldn’t even remotely do anything useful would be to state the obvious. To say that it’s a grandstanding piece of absolute nonsense would be about the best thing I could think of. It’s garbage in so many ways.

The actual functioning of the bill would be to add an exception to Section 230’s protections, saying that they no longer apply — if it’s in the midst of a health crisis — for medical misinformation. It would add the following “EXCEPTION” to Section 230:

A provider of an interactive computer service shall be treated as the publisher or speaker of health misinformation that is created or developed through the interactive computer service during a covered period if the provider promotes that health misinformation through an algorithm used by the provider (or similar software functionality), except that this subparagraph shall not apply if that promotion occurs through a neutral mechanism, such as through the use of chronological functionality

And, this law would only be in effect during a public health emergency, as declared by the Secretary of Health & Human Services. The law would also require the Secretary of Health & Human Services to “issue guidance regarding what constitutes health misinformation.” That last bit should make you grimace, because that’s a hugely problematic thing for the 1st Amendment. Having the government define what is and what is not “health misinformation” cannot possibly pass 1st Amendment scrutiny by a court.

It’s also incredibly dumb. First of all, in a “public health emergency” like we’re currently going through, what is and what is not “health misinformation” is not always clear, and involves constantly changing information. Remember, we went through this with the whole “wearing masks” thing at the very beginning of the pandemic. Then, you had the WHO and CDC advise against wearing masks. Under this bill, you could have had the HHS boss claim that anyone promoting mask wearing was engaging in health misinformation… and somehow try to make Facebook liable for it. Would that have been a good idea?

Even worse: imagine what kind of information might be declared “health misinformation” by disingenuous grandstanders? Pro-choice information? Information about transgender health?

But, going back a step: what would this law actually do, even if it weren’t so blatantly unconstitutional? The answer is absolutely fucking nothing. Because, as we pointed out on Wednesday, you still need an underlying cause of action and there is none here. Okay, so now Facebook is magically “liable” for health misinformation? But as soon as anyone sues, Facebook says “that content is protected speech, so there’s no cause of action here” and the court dismisses the case. Whether we like it or not, nearly all misinformation is still protected under the 1st Amendment. And, for the reasons discussed earlier, that’s probably a good thing — because otherwise, you’ll have the government declaring things you agree with as misinformation, and that leads to very dangerous places.

This entire bill is not just grandstanding nonsense, but a waste of time. Yes, we should be looking for ways to better educate the public about the actual efficacy of (massively successful) COVID-19 vaccines. And, yes we need to figure out better ways to reach those who are skeptical about vaccines or hesitant to get the vaccine. But this bill does none of that. It just throws a bunch of garbage out so that Klobuchar can stand before the TV cameras and pretend to do something. It’s the worst kind of political grandstanding.

And, while we’re talking about how ridiculous this is, let’s just throw in a giant “oh shut the fuck up” to Facebook as well for putting out a total garbage statement in response:

“We have long supported common industry standards and section 230 reform. We believe clarification on the difficult and urgent questions about health related misinformation would be helpful and look forward to working with Congress and the industry as we consider options for reform.”

What a bunch of garbage. Facebook knows that this bill is a mess of nonsense, and that the 1st Amendment would stop it from having any impact. Rather than putting out a compliant, suck up statement, why can’t Facebook speak up about what it’s actually doing to try to deal with health misinformation on the site? That would be interesting and that has mostly been absent from this discussion beyond whatever uninformed nonsense is being stated by people outside the company about what they think Facebook is doing (which is either “nothing” according to many ignorant folks, or “censoring conservatives!” according to another bunch of equally ignorant folks). If Facebook came out and actually explained what it really is doing that would be helpful. But, of course, Facebook is trying to play the politics of all of this, rather than doing the right thing.

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Comments on “Senators Klobuchar And Lujan Release Ridiculous, Blatantly Unconstitutional Bill To Make Facebook Liable For Health Misinformation”

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42 Comments

This comment has been flagged by the community. Click here to show it.

Rico R. (profile) says:

Re: Re: Error 404: Libel not found

I have to disagree with this statement, too. Being wrong about something is a requirement for it to be libel. Libel is written defamation, while slander is spoken defamation. For something to constitute defamation, you must make a statement of fact that is false (and therefore be "wrong" about something), AND, unless it’s defamation per se, it has to cause actual harm to the plaintiff.

I still agree libel isn’t found here, though. In the case of "health misinformation", it’s not defamation per se, and it can’t constitute harm to a plaintiff as required by law. To have standing to sue, you have to have a particular injury-in-fact that is caused by the defendant (i.e., Facebook) that can be redressed by a favorable court ruling. In this hypothetical libel case, any "harm" would merely be conjectural (i.e., Simply saying, "Facebook’s spreading of misinformation may cause people to avoid getting vaccinated, become infected with COVID, and die," is merely conjecture and not a concrete or particularized injury), thus proving fatal to OP’s claim that "libel laws" can provide a cause of action.

But either way, this bill is an unconstitutional disgrace. We need to do something to combat misinformation. But merely blaming Facebook and "Big Tech" for everything because they refuse to "nerd harder" and eliminate all misinformation is pointless. There are other, constitutional, better ways of informing people about the pandemic and COVID-19 vaccines, including things that DON’T require action by Congress to do so. Let’s try to come up with those kinds of solutions. But this bill… it ain’t it!

Chozen says:

Yes Unconstitutional But Not By Much

The only reason this would be Unconstitutional is the wording "shall be treated as the publisher."

If the bill simply revoked section 230 for medical topics during times of a declared medical emergency, that would be constitutional.

The determination of publisher or platform would then fall to the courts as existed before section 230 based on the degree to which the service curated content as we saw with the prodigy and CompuServe decisions.

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Jojo (profile) says:

It is astounding that Amy Klobachar is still this naive about how the internet works. Her suggestions on carving section 230 are the embodiment of “the road to hell is paved with good intentions.” This bill is so retarded that it makes Koby’s arguments on section 230 seem grounded in reality.

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Anonymous Coward says:

So say this passes. She does realize that the moment that the GOP gains enough ground they’ll start to trumpet the "public health emergency" that is "afflicting the unborn" and use that as a platform to gin up more support. Then the appropriately partisan officials are installed and suddenly legitimate, proven health information is no longer available on social media.

There are people who already consider so very many aspects of modern society as crises of the good health of the public – providing any sort of opportunity to limit discourse based on that is incredibly short-sighted. "Our children face a public health emergency from comic books/television/video games/the internet/youtube."

Or, per your taste, flip the script. Proliferation of guns is now a "public health emergency." Disregarding calls for social justice creates a "public health emergency." Reparations would resolve a "public health emergency."

Wherever you sit, this is a bad idea.

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Scary Devil Monastery (profile) says:

Re: Re:

"Wherever you sit, this is a bad idea."

Unless you sit with the GOP who’ll love it when the democrats give them a real cause to motivate their base further with.

The US body politic needs more credibility, not less. And Amy there seems dead set of making the long-debunked "Both sides are equally bad" argument a reality. What the heck is she thinking? ????

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Koby (profile) says:

Don't Be So Certain

What a bunch of garbage. Facebook knows that this bill is a mess of nonsense, and that the 1st Amendment would stop it from having any impact.

Your argument is premised a lot on the hope that no judge would separate the speech in question from the harm it caused. Meanwhile, look at shady stock market salesman, or tobacco advertisements, and tell me how much the first amendment protected them. Trust me, it’s all part of the plan. We’ve heard it right here in these comments when other folks say "speech should have consequences".

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PaulT (profile) says:

Re: Re: Re: Don't Be So Certain

"Klobuchar doesn’t want to file lawsuits against a bunch of ordinary folks"

Then.. that’s her problem? The law shouldn’t change depending on what a particular person can be bothered to do that day.

"Rather, she just wants the speech suppressed."

Which is a problem coming from a government figure. Unlike the users of a private platform you usually whine about.

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Anonymous Coward says:

Re: Don't Be So Certain

"speech should have consequences".

But where have you seen any comments about speech having government consequences?

Yes, speech should have consequences, the kind of consequences that get racist assholes kicked off of social media.

But those consequences should not give legal liability to 1st amendment protected speech, IE gov’t mandated consequences.

Can you see the difference?

PaulT (profile) says:

Re: Re: Don't Be So Certain

"But where have you seen any comments about speech having government consequences?"

Never. He’s desperate to pretend that platforms being popular means they’re defacto government agents, but he’s never presented a shred of support for that claim.

It’s amazing, but it supports the old quote about not being able to convince someone of something if their wage depends on it. Which only raises the question of who is getting such poor value for money.

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Anonymous Coward says:

Re: Thank you, Koby

A comment that actually looks at some useful arguments about free speech and corporate speech. It is not unalloyed, though:

when other folks say "speech should have consequences".

There is, again, that pesky split between private action and government action. When folks say "speech should have consequences", they’re generally talking about private action. By adding it in to your argument here, you are erroneously attributing those sentiments to requests for government action.

Tobacco advertisements

Speech by the tobacco industry. Commercial speech. Advertising speech that state AGs called false advertising of their products.

"shady stock market salesmen"

Speech by the salesmen. Commercial speech. Direct fraud, presumably, though you need to provide more specific examples before any argument can be made.

Facebook

Speech by third parties, facilitated by Facebook. Speech by natural persons. Ill-defined restrictions which are content-based.

Hint: content-based speech restriction is almost always struck down on First Amendment grounds.

Hint: Advertising speech is more restricted than general speech.

While you are right that judges are not perfect, the odds are vastly in favor of Facebook.

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James Burkhardt (profile) says:

Re: Don't Be So Certain

Speech should have consequences, for the people speaking. A used car salesman who caused harm, likely did so by selling cars. The harm caused by his defective product is what got him in trouble. A common cause of action would likely be deception, false or misleading statement(s) that hid the true condition of the product. Fraud is narrowly defined, long standing exception to the 1A. That narrow definition makes it netoriously hard to get to stick with used cars. Its hard to prove that the salesman knowingly made false representations.

Your argument is "limits to the first amendment for fraud exist". Its true. But that isn’t an arguement, its a premise. You still havent explained how the speech is actionable fraud. And then you still from there have to show that Facebook is liable. Facebook isn’t the speaker. You need to transfer that liability from the speaker to Facebook, to achieve intermediary Liability.

The speech you mention is in service of a sale. That the speaker directly profited from the false or misleading statements. And if the speaker of health disinfo is selling you a product off that disinformation, the speaker has committed fraud. Think the "church" that sold you bleach as a covid cure after Trump suggested it. But there are pleanty out there who aren’t making a buck. They are sharing conspiracy theories and propeganda but aren’t profitting. In these cases there is no cause of action. We couldn’t sue Trump for lying about COVID, we can’t sue Tucker for saying kids can’t be killed by COVID, and we can’t sue random weirdos for saying bill gates is injecting you with microchip. And yet. you still have to make Facebook liable.

The worst part is, you are so dumb you can’t see that Techdirt has given you the answer. Smart money would have be to point to the number of times Techdirt has highlighted what section 230 was intended to do: overturn the ruling in the Prodigy case. If Section 230 were repealed, you can bet people would try to use the prevailing case law, Prodigy Versus Oakmont, to force Facebook to be liable as Techdirt has argued. Thats a good arguement. I wish it was one you were making. It would require you to admit what section 230 actually does though.

I expect Techdirt would counter that recent apeallete and SCOTUS rulings (including the red flag knowledge case google vs viacom) would suggest that Facebook, who has the money to appeal as far as necessary, would eventually litigate the issue to a court which would rule that just because moderation happens, Facebook is not on notice of and cannot review the content of every post. Facebook is not and cannot be liable for content it did not create. The only thing section 230 did was to shortcut that whole debate and get to that result.

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Chozen says:

Re: Re: Don't Be So Certain

"I expect Techdirt would counter that recent apeallete and SCOTUS rulings (including the red flag knowledge case google vs viacom) would suggest that Facebook, who has the money to appeal as far as necessary, would eventually litigate the issue to a court which would rule that just because moderation happens, Facebook is not on notice of and cannot review the content of every post. Facebook is not and cannot be liable for content it did not create. The only thing section 230 did was to shortcut that whole debate and get to that result."

But then you go right back to Stratton Oakmont v. Prodigy (1995) that is the law absent section 230 immunity.

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Scary Devil Monastery (profile) says:

Re: Re: Re:5 Re:

"If you chose to curate it becomes your speech."

If that were true the owner of a blackboard would suddenly become liable for what people wrote on it when he takes it down.
That’s just false analogy.

"A newspaper can be sued for libel for its letters to the editor."

Because a newspaper receives the information, and personally chooses whether or not to putit up – i.e. publish it.

The "publisher" on a social platform is the person writing the comment, not the platform. The platforms only involvement is to determine whether a person who has been allowed access and the privilege to put up comments on their platform should or should not retain those privileges.

This has been explained to you many times and you just keep repeating arguments which have been debunked multiple times or invalidated by tons of judges and a few SCOTUS cases by now.

You’re free to differ in your opinion. You aren’t free to differ with proven fact. Or, well, you can and often do, but in that case it just ends with your comment flagged and people laughing.

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PaulT (profile) says:

Re: Re: Re:5 Re:

"A newspaper can be sued for libel for its letters to the editor."

Yes. Now, try to imagine what the fundamental difference between selecting a single letter from a list and editing it before publication would be compared to seeing hundreds of thousands of posts every second and taking action against them after the time they were posted.

Tanner Andrews (profile) says:

Re: Re: Re: Don't Be So Certain

Stratton Oakmont v. Prodigy (1995) that is the law absent section 230 immunity

Well, it is the law for one trial judge, absent S:230 immunity. Not exactly a useful precedent, especially in light of the congressional reaction to it.

Oddly enough, I see no reference anywhere to the trial court ruling being sustained on appeal. Nor, in the non-electronic realm, do I recall hearing of a property manager being held liable for what was posted on the cork-board at the end of the hall, with that being sustained on review.

PaulT (profile) says:

Re: Re: Re:2 Don't Be So Certain

"Nor, in the non-electronic realm, do I recall hearing of a property manager being held liable for what was posted on the cork-board at the end of the hall, with that being sustained on review."

This is all that really matters. The Prodigy case and section 230 are really only about one thing – bringing reasonable liability online to be similar to the liability offline. Nobody goes around saying that a business offering public spaces like noticeboard legally liable for everything that’s posted there, nor do they claim that newspapers are liable for anything scribbled on a copy post-publication. The only thing different to online speech is that people are demanding that it’s illegal for companies to take down those noticeboard messages, which is something that doesn’t get demanded in the physical world.

Scary Devil Monastery (profile) says:

Re: Don't Be So Certain

"We’ve heard it right here in these comments when other folks say "speech should have consequences"."

For the speaker, yes. Not for the guy owning the pub where he speaks. No one is saying that "Four Seasons Total Landscaping" should be liable for Rudy Giuliani lying like a mofo on their premises.

"…look at shady stock market salesman, or tobacco advertisements, and tell me how much the first amendment protected them."

All The Way. Oh, you mean it restricts what they can claim without being liable to private lawsuits when it concerns commercial transactions? Yeah, fraud law is a different kettle of fish.

But you already knew you were pulling a false analogy right out of your ass again, Koby.

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That One Guy (profile) says:

Someone has a REALLY short memory

Setting aside the glaring constitutional issues for a moment you’d think someone who survived four years of ‘I don’t like it therefore it’s fake news’ would understand why it’s a horrible idea to give the government the power to dictate what counts as ‘truth’ and punish those that don’t toe the line.

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Toom1275 (profile) says:

Re: Someone has a REALLY short memory

When Trump could declare a fake national emergency so he could steal money to harass Mexico building his Folly at the border, what will the next terrorist president declare to be an emergency to abuse this first-amendment end-run to silence?

Scary Devil Monastery (profile) says:

Re: Re: Someone has a REALLY short memory

Yeah. Let’s all remember this topic so next time some lying alt-right shitwit comes along and says we’re all just "backing our team" we can point out that none of us here are pleased with this toxic bomb dropped by Amy.

Ironically the alt-right seems keen though. At least Koby’s here, applauding the efforts of a democrat rather than a Trumper.

Inthe greenwoods (profile) says:

The question of profiting from lies, while unlicensed to do so

As far as I know any one can give free medical advice, but you have to be a licensed doctor to make money by giving medical advice, and if your advice kills some one there are consequences. Thousands of people are dying every day who have taken advice from highly paid media spruikers giving advice that they are not licensed to give.
I don’t see how any new law would be required to prosecute the liars, especially as they are masquerading as experts while selling advertisements.
There are now millions of victims of the fake medical advice industry, and billions of dollars of profits from the trade.
So why aren’t the liars being prosecuted, or at the very least being sued for damages?

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