GOP Releases Bill To Stop Administration From Pressuring Social Media Companies… And, It’s Actually Not Totally Crazy?

Free Speech

from the a-surprisingly-not-terrible-bill dept

Now that the House is (barely) in the control of the Republican Party, we expected an awful lot of dumb anti-tech laws (the Democrats are also pushing dumb anti-tech laws, but of a different nature). The GOP has, in the recent past, laid out a big long list of bills as part of its “big tech” platform, and most of them are ridiculous and often unconstitutional (and many of them conflict with each other). Furthermore, it was noted that part of Speaker McCarthy’s negotiations with hardliners, who initially withheld their votes in his quest to become Speaker, included setting up a silly special committee to “investigate” government “weaponization” of social media. This has come to pass.

So, I fully expected the first tech-related bills to come out of the House to be pretty stupid. But… I’m actually kinda surprised. Representatives James Comer and Cathy McMorris Rodgers have introduced a bill to stop the administration (amusingly, their press release focuses on the Biden administration, without noting that such a bill would, in theory, bind future administrations of either party) from “pressuring social media companies” in how they moderate.

And, on the whole, I actually like the concept of the bill. The government shouldn’t be pressuring anyone regarding their moderation decisions. Of course, that kind of pressure is already a violation of the 1st Amendment, but having it explicitly laid out in a law like this avoids having to go down the trickier 1st Amendment challenge route. The crux of the bill:

In General—An employee may not —

use the employee’s official authority or influence to advocate that any third party, including a private entity, take any action to censor any speech.

There are a bunch of caveats and definitions in the bill, but.. yeah, in general any of that would likely be a 1st Amendment violation (or at least close to it). I am concerned about the inclusion of “influence” here, because, it’s never a 1st Amendment violation for the government to use the bully pulpit to try to persuade companies or individuals to do things, they do that all the time. The 1st Amendment issue — as courts have repeatedly noted — only comes in when there’s some sort of coercion, usually in the form of a threat of punishment. Merely trying to influence, however, is standard practice for the government.

Still, the real issue is that many people are (falsely) insisting that there’s evidence that the Biden administration has already been engaged in forcing companies to “censor,” when the details suggest otherwise. That doesn’t mean the administration hasn’t gone right up to the line in ways that were counterproductive, or just fucked up the messaging in its initiatives in a manner that enabled bad faith actors to lie and pretend that there was censorship going on.

And, yes, the White House should stop doing that.

Of course, the Trump White House regularly would have violated this law in demanding that social media companies moderate in the way they wanted, but we’ll leave that aside as well.

The big issue with the bill is in some of the gray areas of the definitions. Would the White House merely talking about foreign influence operations or election disinformation be seen as “influencing” social media to remove that content? Because, if so, that would obviously be ridiculous.

The way current 1st Amendment precedent stands, there needs to be some real coercive aspect to the government speech, including some sort of threatened implication for not obeying and taking down the concerning speech. So, the fear with this bill is that the broad concept of “influencing” social media could sweep up what should be perfectly normal, valid governmental actions around public education.

That said, a bill like this could have been much worse. Indeed, given the other things the GOP has said of late, I expected it to be way worse.

It’s unlikely this bill goes anywhere, of course, but kudos to Reps. Comer and McMorris Rodgers for actually introducing a bill that mostly seems focused on actually reinforcing the 1st Amendment’s protections.

Filed Under: 1st amendment, cathy mcmorris rodgers, content moderation, influence, james comer, social media