Senator Gillibrand Says We Don’t Have To Regulate Speech, Just Misinfo. Who Wants To Tell Her?

Content Moderation

from the that's-not-how-any-of-this-works dept

It remains ridiculous how many politicians, across the political spectrum, resort to nonsense populism and grandstanding, rather than actually being willing to confront actual challenges. Now, I’ll be the first to admit that there are certain societal level issues that politicians simply cannot solve, and given the nature of a democracy based on first-past-the-post voting, it’s natural that politicians are going to gravitate towards emotional pleas, rather than nuanced and thoughtful ones. But, that doesn’t mean it’s not disappointing.

We’ve already talked about how NY’s governor, Kathy Hochul has decided to blame the Buffalo shooting (which is now how many mass murders ago?) on social media (even as there are multiple indications that there were many failings by government employees along the way…), and now NY Senator Kristen Gillibrand seems to be joining the fray.

Last weekend, she went on MSNBC and made a statement that made every person even remotely knowledgeable about how the 1st Amendment works cringe. Host Katy Tur asks Gillibrand “can you regulate speech on the internet without violating free speech rights?”

You don’t have to regulate speech, you can regulate misinformation.

[Bangs head on desk repeatedly in frustration.] Nearly all “misinformation” is protected speech, Senator. Regulating misinformation is regulating speech, period. And this is for good reason. First, who decides what is and what is not misinformation? The government has a terrible, terrible track record here. Also, anywhere laws have cropped up to “regulate misinformation” they are almost universally used to suppress speech by critics of the government, the marginalized, and the at risk. I mean, the doctor in China who first tried to raise the alarm about COVID was arrested for spreading misinformation.

Even if you say “well, China is different,” we can find the same issues here in the US. Remember, at the beginning of the pandemic, when all the various health officials said not to wear masks? Some people, correctly, argued that masks actually would help, and the actual misinformation was coming from the government (mainly because they didn’t want people hoarding masks at a time when frontline workers needed them more, but still, it was misinformation).

And, as we’ve seen repeatedly with efforts by social media companies to deal with misinformation on their platforms, it presents a real challenge to do that in a reasonable way, especially in situations where things are dynamic and rapidly changing. Regulating that at the government level really seems prone to abuse, potentially in very dangerous ways.

Hell, let’s just think about it this way: if Senator Gillibrand somehow got what she wanted, and the government could “regulate misinformation”… and then in two years Donald Trump gets re-elected to the Presidency, how do you think he — who regularly and predictably claimed that any critical news story about him was misinformation — would use such a power?

Anyway, Gillibrand then doubled down on the really bad misunderstanding of the 1st Amendment:

You can’t yell fire in a theater… there are many ways you can abrogate speech rights that are consistent with the constitution. And for an 18-year-old to develop such hatred in his heart through media platforms that do not have any regulation is a problem. We need commonsense, thoughtful regulation.

First off, we’ve explained (multiple times) why you shouldn’t listen to anyone using the fire in a theater line (and I’ll just note here that she left out both the “falsely” and the “crowded” part of the saying). It was a throwaway line used in a case to justify jailing someone for protesting the draft in World War I, and that case hasn’t been considered good law in over 50 years.

And, no, there are not “many ways” that you can abrogate speech consistent with the Constitution. There are a very small and very specific set of ways.

And that’s not even touching on the fact that Gillibrand just takes it as fact that the guy who killed people did so because he got ideas “through media platforms that do not have any regulation.”

As we’ve discussed at great length, part of the issue is that there are many different factors at work here. In many cases, social media may just be shining a light on, or exposing, terrible views that people have always had, but there was less visibility on them. There may be some cases where people find others, or content, that drives them deeper into these holes, but there have always been cults and mass delusions in the past, and the issue is human psychology, not the medium being used. On top of that, there are plenty of stories of people who have gotten out of these kinds of spirals by using the internet to educate and to connect with people who are different and have different views.

You can’t just immediately assume that because someone who believed bad stuff posted bad stuff online that the internet is the problem. It is certainly a bit of evidence that there is a problem, but blaming the internet is very much blaming the messenger. Even worse, it’s effectively trying to sweep the real problems under the rug. If you require major websites to hide all “bad” content, people will just go deeper and deeper into sketchier and sketchier forums (already, the Buffalo shooter admits that he was deep in those communities). None of that helps get them out of the spiral.

So, while blaming the internet may be easy, it’s trying to come up with an easy solution to a complex problem. And, sure, I know that’s what politicians do, but wouldn’t it be nice if we actually had politicians who were able to admit that complex problems require more complex approaches, rather than… whatever nonsense Senator Gillibrand went with above?

Filed Under: 1st amendment, content moderation, free speech, kristen gillibrand, misinformation