Robert Reich Loses The Plot: Gets Basically Everything Wrong About Section 230, Fairness Doctrine & The 1st Amendment
from the dude,-no dept
I still find myself somewhat amazed at how otherwise intelligent people seem to lose their entire minds over the fact that there’s a fair bit of misinformation out there. Robert Reich is not a dumb guy, but like so many these days, he seems to work himself up in a lather about things he doesn’t seem to understand. He has an opinion piece at the Guardian about his suggestions to restore American democracy… and apparently part of that is throwing out the 1st Amendment. Which is, you know, quite a choice. I won’t comment on his first and third suggestions (voting rights and money/politics) because those aren’t my areas of expertise, but when he dips his toe into Section 230 and misinformation, I have to point out that everything Reich writes in this piece is so far beyond wrong that it would need to ask directions just to get back into the vicinity of “just kinda wrong.”
The second step is to constrain big anger emanating from social media, Fox News, and other outlets. There are two ways to do this without undermining freedom of speech.
Hmm. So, I’ve been among those who have pointed out that the actual evidence has shown repeatedly Fox News is a much more important vector of misinformation than social media, but at least I recognize you can’t do anything about that legally, because of the 1st Amendment. So I’m curious how Reich thinks he’s going to do this without infringing on the 1st Amendment (spoiler alert: he’s not going to do that, he’s just going to ignore the 1st Amendment). Also, it’s kinda weird how he lumps social media and Fox News together, since they’re very different, and, as such, require very, very different strategies to counteract. If Reich spoke to an expert rather than pontificating out of ignorance he might have learned that.
Revoke Section 230 of the Communications Act, which now protects digital media providers from liability for content posted by their users even if that content is harmful, hateful or misleading. There is no continuing justification for this legal protection, particularly at a time when the largest of these providers have become vast monopolies.
I mean, this is just beyond clueless. Perhaps he missed the famed NY Times correction (that it has run verbatim multiple times)?
I mean, anyone with even a passing familiarity with the 1st Amendment knows that “harmful, hateful, or misleading” speech is protected by the 1st Amendment (there is a tiny, tiny, tiny exception, for a very, very narrow form of “harmful” speech — that which meets the Brandenburg standard — but that wouldn’t apply here and 230 wouldn’t help either for that exception). All 230 does is help get these frivolous lawsuits tossed out procedurally earlier, which is a huge benefit.
Also, that last line is particularly stupid: Section 230 protects all websites that host 3rd party content and users who share that content. The fact that a very small number of those companies are large changes nothing about that.
Even worse, if Reich knew even the first thing about the history of Section 230, he’d realize how totally blinkered and backwards this suggestion is. Section 230 is what allows websites to experiment with better ways to stop disinformation. Section 230 came about because of a lawsuit whereby a website was found liable for information it left up because it moderated other content. So if you get rid of 230, sites that moderate face more legal liability. That means some of them will decide the better approach is not to moderate at all, which would better protect those sites given the history of the law in this area.
Reich’s second suggestion is no better.
Create a new ?fairness doctrine? requiring that all broadcasters, including cable, cover issues of public importance in ways that present opposing perspectives. This will be difficult to enforce, to be sure, but it would at least affirm the nation?s commitment to holding broadcasters to a higher standard than merely making money.
Again this shows a total ignorance of the fairness doctrine, including how it worked in practice and the legal basis under which it was allowed to exist. It can’t cover cable. That’s not even an open question. Under the doctrine that (narrowly!) allowed the fairness doctrine to apply to broadcast TV, the Supreme Court made it pretty clear that this was only constitutional because broadcasters were using limited spectrum that came from the government. That’s not true of cable.
And, again, Reich should maybe learn something about the history of the fairness doctrine — which scared broadcasters away from taking on controversial topics — and meant less coverage of things like civil rights.
Also, would this mean CNN would now need to present the Trumpian side of every story? Why would anyone want that? Any story about the benefits of COVID vaccines needs to be balanced with a vaccine denier? That’s ridiculous. And unconstitutional.
What’s incredible is that with both of these, Reich insists that neither of these would “undermine freedom of speech.” Except both would do exactly that. Removing the ability of websites to moderate freely is an attack on free speech rights, and in the case of the fairness doctrine, the Red Lion case explicitly highlights how applying it to something like cable is a blatant attack on the 1st Amendment.
Maybe Reich’s ideas on the other suggestions in the piece are better — but they’re so fundamentally flawed on the area I know about, it leads me to believe that Reich has turned into one of those guys who spreads misinformation. Ironically, in Reich’s own fantasy world, he should probably be held liable for that.