More Than Two Thirds Of States Are Pushing Highly Controversial (And Likely Unconstitutional) Bills To Moderate Speech Online

Free Speech

from the the-moral-panic-to-end-all-moral-panics dept

Over the last year and a half, we’ve had plenty of stories about how various state legislators are shoving each other aside to pass laws to try to regulate speech online. Of course, that’s generally not how they put it. They claim that they’re “regulating social media,” and making lots of (highly questionable) assumptions insisting that social media is somehow bad. And this is coming from both sides of the traditional political spectrum. Republicans are pushing bills to compel websites to host speech, while Democrats are pushing bills to compel websites to censor speech. And sometimes they team up to push horrible, dangerous, unconstitutional legislation “for the children.”

Over at Politco, Rebecca Kern has done an amazing job cataloging this rush by state legislators across the country to push these laws — almost all of which are likely unconstitutional. It’s depressing as anything, and in a few decades when we look back and talk about the incredibly ridiculous moral panic over social media, maps like these will be front and center:

You should read Kern’s full article, as it breaks the various bills down into four categories: banning censorship, reporting ‘hateful’ content, regulating algorithms, and mandating transparency — including interesting discussions on each category.

Of course, as you’ll note in the chart above, while Texas, Florida, and New York are the only states so far to pass such laws, the Florida and Texas ones are both on hold due to courts recognizing their problems. While New York’s only passed bill (it has more in the hopper) perhaps isn’t quite as bad as Florida’s and Texas’, it’s still awful and hopefully someone will challenge the constitutionality of it as well.

However, part of the problem is that for the apparently dwindling collection of people who still believe in free speech online, all of these bills (and many of the states listed above aren’t doing just one bill, but multiple crazy bills all at once) are creating a sort of distributed denial of service attack on free speech advocates.

We simply can’t respond to every crazy new bill in every crazy state legislature trying to regulate speech online. We (and here I mean literally us at the Copia Institute) are trying to help educate and explain to policymakers all across the country how dangerous and backwards most of these bills are. But we’re a tiny, tiny team with extremely little resources.

Yet, at the same time, many in the media (without noting that they compete with social media for ad dollars) seem to be cheering on many of these bills.

And, speaking of “free speech advocates,” it is beyond disappointing in Kern’s article to see the Knight First Amendment Institute, which I’ve worked with many times, and which I respect, quoted as supporting some of these clearly unconstitutional bills. There seems to have been an unfortunate shift in the Institute’s support for free speech over the last year or so. Rather than “protecting” the 1st Amendment, it has repeatedly staked out weird positions that seem designed to chip away at the 1st Amendment protections that are so important.

For example, they apparently see the ability to regulate algorithms as possibly not violating the 1st Amendment, which is crazy:

However, Wilkens, of the Knight First Amendment Institute, said that while the bill may “implicate the First Amendment, it doesn’t mean that it violates the First Amendment.” He said that while it’s still up for interpretation, the legislation – if it became law – may “be held constitutional because the state’s interest here in protecting young girls seems to be a very strong interest.”

I’m not going to go deep on why this is disconnected from reality — both the idea that the bill being discussed (California’s AB 2048) would “protect young girls” (it wouldn’t) and that it might be constitutional (it obviously is not), but it’s distressing beyond belief that yet another institution that has taken in many millions of dollars (way more than Copia has received in nearly 25 years of existence) is now fighting against the 1st Amendment rather than protecting it.

There’s a war going on against online speech these days, and much of it is happening in state houses, where it is very, very difficult for the remaining advocates of online speech to be heard. And it’s not helping that others who claim to be supporters of free speech are out there actively undermining it.

Filed Under: 1st amendment, california, florida, free speech, online speech, regulating social media, state legislatures, states, texas