It's Not Just Republican State Legislators Pushing Unconstitutional Content Moderation Bills

from the pointing-the-finger-at-the-other-side-of-the-aisle dept

Over the last month we've written quite a few times about various state legislatures (and Governors) picking up on the nonsensical and unsupported statements that (1) "conservatives" face too much bias in social media content moderation decisions and (2) that Section 230 is somehow to blame for this. They've pushed a whole bunch of blatantly unconstitutional state laws that would seek to limit how social media companies can moderate content -- effectively compelling them to host content they disagree with (which would violate the 1st Amendment). Of course, as we've noted for quite some time now, both Republicans and Democrats seem to be very mad at Section 230, but for totally contradictory reasons. Republican bills seek to make social media companies moderate less content, while Democratic bills seek to make social media companies moderate more content.

Both approaches are unconstitutional violations of the 1st Amendment. While most of the fights over the past few years have happened in Congress, now with these bad bills moving to the state legislators, it appears that Democrats don't want to be left behind. Over in Colorado, Colorado Senate president pro tempore Kerry Donovan would seek to force companies to moderate "hate speech," "fake news," and "conspiracy theories."

The full bill is really, really bad. Websites would need to register (for a fee) with a "digital communications commission" in Colorado, and that Commission would accept complaints against social media websites if they were used for hate speech, undermining election integrity, disseminating intentional disinformation, conspiracy theories, or fake news. There's a big problem with this: most of that is protected under the 1st Amendment. I know that many people don't like that those things are protected speech, but you actually should like it. Because if "fake news" or "undermining election integrity" was not protected under the 1st Amendment, just imagine how the Trump administration would have abused both things.

After all, it spent four years arguing that any criticism of the administration was "fake news" and claimed, repeatedly (despite the total lack of evidence) that the processes and procedures that helped make the 2020 election fair actually "undermined election integrity." This is why we don't let the government punish people for speech around those issues, because the government will define it in ways we dislike.

As Eugene Volokh notes, beyond the fact that all of this is pretty clearly unconstitutional, the bill doesn't even bother to define "hate speech." Or "undermine election integrity." Or "fake news." Or "conspiracy theories." Or "intentional disinformation."

Kerry Donovan is now running for US Congress as well (against conspiracy theorist Lauren Boebert). One would hope that she would have first learned how the 1st Amendment works before seeking to run for Congress. We might agree that Boebert clearly doesn't belong anywhere near Capitol Hill, but that's no excuse for misunderstanding some fairly basic principles in the Bill of Rights.

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Filed Under: 1st amendment, content moderation, disinformation, election integrity, fake news, free speech, hate speech, kerry donovan, lauren boebert, social media


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  1. icon
    Scary Devil Monastery (profile), 16 Mar 2021 @ 9:04am

    Re: Re:

    "I swear, it's embarrassing how much more about the document I seem to know than people who are supposed to have been taught about it throughout childhood."

    This is one of the many reasons I'm giving up on the US as a whole. 1 out of 3 people aren't literate enough in their own language to understand their own constitution at a level most european grade school children could, even when reading that foreign document in a language not their mother tongue.

    A nation divided against itself can not stand. It's fortunate the division seems to be between the sane and the village idiots, of which there is a tragic surfeit.
    Because the only thing keeping the US out of another civil war by now would be that 73 million americans are such gormless morons their attempted "coup" ended with the coup leaders posting selfies of themselves committing high crimes...and some joker shitting on the rotunda floor.

    Bill Maher's "New Rule: Losing To China" on youtube or HBO, brings it all down to perspective. The US seems hell-bent on regressing to when it could still claim some of the hype - around early 19th century - and seems content with that.


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