Senator Klobuchar's Next Unconstitutional Speech Control Bill: The NUDGE Act

Free Speech

from the please-stop dept

Is there a contest in the Senate to see who can propose the highest number of unconstitutional bills? You might think that the leader in any such contest would have to be a crazed populist like a Josh Hawley or a Ted Cruz, but it seems like Senator Amy Klobuchar is giving them a run for the money. Last summer, she released a bill to try to remove Section 230 for “medical misinformation,” as declared by the Ministry of Speech Director of Health and Human Services. We already explained the very, very serious constitutional problems with such a bill.

And now she’s back with a new bill, the NUDGE Act (Nudging Users to Drive Good Experiences on Social Media) which she announced by claiming it would “hold platforms accountable” for the amplification of “harmful content.” You might already sense the 1st Amendment problems with that statement, but the actual text of the bill is worse.

In some ways, it’s an improvement on the health misinformation bill, in that she’s finally realized that for any bill to pass 1st Amendment scrutiny it needs to be “content neutral.” But… it’s not. It claims that it’s taking a “nudge” approach — popularized from Cass Sunstein and Richard Thaler’s 2008 book of that name. But the whole point of “nudges” in that book is about small tweaks to programs that get people to make better decisions, not threats of government enforcement and regulations (which is what Klobuchar’s bill does).

The bill starts out fine… ordering a study on “content-agnostic interventions” to be done by the National Science Foundation (NSF) and the National Academies of Sciences, Engineering, and Medicine (NASEM) to look for such content-agnostic interventions that would “reduce the harms of algorithmic amplification and social media addiction.” And, sure, more research from independent and trusted parties sounds good — and the NSF and NASEM generally are pretty credible and trustworthy. Perhaps they can turn up something useful, though historically, we’ve seen that academics and government bureaucrats who have no experience with how content moderation actually works, tend to come up with some ridiculously silly ideas for how to “fix” content moderation.

But, unfortunately, the bill goes beyond just the studies. Once the “initial study report” has been delivered, the bill then tries to force social media companies to adopt its recommendations, whether or not they’ll work, or whether or not they’re realistic. And… that is the unconstitutional part. You can call it “content-agnostic” all you want, but as soon as you’re telling companies how they have to handle some aspect of the editorial discretion/content moderation on their sites, that’s a 1st Amendment issue. A big one.

The bill requires the Commission it creates to start a rulemaking process which would release regulations for social media websites. The Commission would determine “how covered platforms should be grouped together” (?!?), then “determine which content-agnostic interventions identified in such report shall be applicable to each group of covered platforms…” and then (play the ominous music) “require each covered platform to implement and measure the impact of such content-agnostic interventions…”

And here’s where anyone with even a tiny bit of trust and safety/content moderation experiences throws back their heads and laughs a hearty laugh.

Content moderation is an ever-evolving, constantly adapting and changing monster, and no matter what “interventions” you put in place, you know that you’re immediately going to run into false positives and false negatives, and more edge cases than you can possibly imagine. You can’t ask a bunch of bureaucrats to magically come up with the interventions that work. The people who are working on this stuff all day, every day are already trying out all sorts of ideas to improve their sites, and through constant experimentation, and adaptation, they keep gradually improving — but it’s a never-ending impossible task, and the idea that (1) government bureaucrats will magically get it right where companies have failed, and (2) a single mandate will work is beyond laughable (even excluding the constitutional concerns).

Also, the setup here seems totally disconnected to the realities of running a website. “Covered platforms” will be given 60 days to submit a plan to the Commission as to how they’ll implement the mandated interventions, and the Commission will approve or disapprove of the plan. And any changes to the plan need to also be approved by the Commission. Some trust and safety teams make multiple changes to rules all the time. Imagine having to submit every such adjustment to a government Commission? This is the worst of the worst kind of government nonsense.

If companies fail to implement the plans, as the Commission likes, then the bill says the websites will be considered to have committed “unfair or deceptive acts or practices” enabling the FTC to go after them with potential fines.

The bill has other problems, but seems to just be based on a bunch of tropes and myths. It would only apply to sites that have 20 million active users (why that many? who the hell knows?), despite the fact that over and over again we’ve seen that laws that target companies by size create very weird and problematic side effects. The bill is nonsense, written by people who don’t seem to understand how social media, content moderation, or the 1st Amendment work.

And, bizarrely, the bill might actually have some support because (astoundingly?!?) it has bipartisan backing. While it’s a Klobuchar bill, it was introduced with Senator Cynthia Lummis from across the aisle. Lummis has, in the past, whined about social media companies “censoring” content she wanted to see (about Bitcoin?!?), but also was a co-sponsor of a bill that would require social media companies to disclose when the government pressures them to remove content, which is kinda funny because that’s what this bill she’s sponsoring would do.

I’m all for doing more credible research, so that’s great. But the rest of this bill is just unconstitutional, unrealistic nonsense. Do better, Senator.

Filed Under: 1st amendment, amplification, amy klobuchar, content moderation, cynthia lummis, harmful content, interventions, mandates, nudge act, social media, studies