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.

Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

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


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • icon
    That One Guy (profile), 11 Mar 2021 @ 10:33am

    Someone has a non-existent memory

    Nothing like proposing a law that beyond 'just' being unconstitutional the last four years make clear is an absolutely terrible idea, because even if you trust those currently in power to use it responsibly if you wouldn't trust your worst enemy with it then that's a good sign that it's a bad idea.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Mar 2021 @ 5:03pm

      Re: Someone has a non-existent memory

      Marketers, politicians, and liars have no memory - they just go with what sounds the most flattering to the zeitgeist of the moment.

      Why yes they were totally for being tough on crime when it was en vogue and they were totally for rehabilitation when "stopping misguided youth from becoming professional criminals" was en vogue.

      reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 11 Mar 2021 @ 11:04am

    While its great masnick is calling out bad left wing ideas, he still can't seem to let trump go. Trump didn't censor things. he may have complained about them, but he tried to control speech the way the left does today. Hate speech, undermining election integrity, disseminating intentional disinformation, conspiracy theories, or fake news will basically mean whatever Democrats don't like.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Mar 2021 @ 11:14am

      Re:

      Trump is a big fat liar,
      among a lot of other really disgusting things.

      reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 11 Mar 2021 @ 11:16am

      Didn’t Old 45 suggest the NFL should fire Colin Kaepernick and other players who protested against police brutality because those players took a knee during the National Anthem? Or was that some other 45th president of the United States who referred to those players as sons of bitches?

      reply to this | link to this | view in chronology ]

      • icon
        crade (profile), 11 Mar 2021 @ 12:54pm

        Re:

        Yeah but he was republican, therefore that was clearly defending free speech not attacking it.

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 11 Mar 2021 @ 7:30pm

        Re:

        Apparently the right to protest at your place of employment is dependent upon whom or what you are protesting.

        For example, Kim Davis.

        reply to this | link to this | view in chronology ]

        • icon
          Toom1275 (profile), 11 Mar 2021 @ 7:53pm

          Re: Re:

          Wow, you trumpaloons really can't make an equivalence that isn't a false one.

          reply to this | link to this | view in chronology ]

          • This comment has been flagged by the community. Click here to show it
            identicon
            Anonymous Coward, 11 Mar 2021 @ 8:47pm

            Re: Re: Re:

            I was attempting to show their hypocrisy but I must have failed or something.

            See, Donald and friends were happy with the Kim thing but not happy with the NFL thing. I guess it was not even worth mentioning. I will see myself out the door, thanks.

            reply to this | link to this | view in chronology ]

            • icon
              Stephen T. Stone (profile), 11 Mar 2021 @ 9:13pm

              I was attempting to show their hypocrisy but I must have failed

              The phrasing of your post implicated you as thinking Kim Davis was “protesting” when she was refusing to follow the law and treat all citizens equally — which also implies a defense of Davis’s actions.

              Bad execution overrides good intent. Next time, aim for clarity instead of cleverness.

              reply to this | link to this | view in chronology ]

        • icon
          Stephen T. Stone (profile), 11 Mar 2021 @ 8:17pm

          Kim Davis refused to serve gay people equally under the law. She did so to “protest” the newly recognized right of same-sex couples to marry.

          Colin Kaepernick knelt during the National Anthem, which played before the football games he was hired to play. He did so to protest police brutality across the country.

          You’ve let your sociopolitical biases cloud your judgment. I mean, you’re literally defending a bigot here. Irrational cruelty is not a virtue, and reasoned dissent is not a vice.

          reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 11 Mar 2021 @ 11:22pm

          Re: Re:

          "For example, Kim Davis."

          Kim Davis, the moron hired by the government who refused to do her job in order to protest? You're claiming that's the same as someone working for a private company protesting in a way that doesn't interfere with their job in the slightest, until the president gets his panties in a twist and demands he be fired for exercising his free speech?

          I know someone as obsessed with being wrong all the time as you are thinks this is a good argument, but, I hope you understand why everyone is laughing at you for being wrong again.

          reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 11 Mar 2021 @ 11:24pm

          Re: Re:

          Wait... I notice now that I might have had the snowflakes mixed up here and attacked you as if you were the OP moron. If I was mistaken, please accept my apology, and please consider using a method to distinguish yourself from the idiots.

          reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 12 Mar 2021 @ 6:59am

        Re:

        That was his opinion, which he has a right to. I didn't see him advocating for a law to prevent that.

        reply to this | link to this | view in chronology ]

    • icon
      Toom1275 (profile), 11 Mar 2021 @ 11:24am

      Re:

      [Projects facts not in evidence]

      reply to this | link to this | view in chronology ]

    • identicon
      Baron von Robber, 11 Mar 2021 @ 12:01pm

      Re:

      Such a sucker. Sad.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 11 Mar 2021 @ 1:03pm

      Re:

      So just gonna ignore him trying to block tik tok for no real reason besides xenophobia and cronyism? Cause that is censoring speech no matter how much you deflect.

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 11 Mar 2021 @ 1:14pm

        Re: Re:

        Those might have been part of the reason he went after Tik Tok but the main reason was almost certainly a bunch of teens using it to punk him by making it seem that a lot more people would be at one of his rallies than actually showed.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 11 Mar 2021 @ 7:31pm

          Re: Re: Re:

          That was awesome!

          reply to this | link to this | view in chronology ]

          • icon
            That One Guy (profile), 11 Mar 2021 @ 11:22pm

            Re: Re: Re: Re:

            To go from boasting that so many seats had been reserved that the building would be packed and he'd have to do a second speech after for those that couldn't fit in to him and everyone else seeing empty seats for days come the actual rally must have been like a kick to the balls for a narcissist like him, and that's a thought that will never stop being funny even if the petty vengeance and gross abuse of power that followed did take some of the shine off.

            reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Mar 2021 @ 11:49am

    “Websites would need to register”

    The entire Internet?

    HAHAHAHAHA! HAHAHAHAHAHA! HAHAHAHA!

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Mar 2021 @ 12:09pm

    Oh boy

    Not surprising. I figured this was gonna happen.

    Doesn't mean I doubt it will or won't pass.

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 11 Mar 2021 @ 1:19pm

    what?

    "limit how social media companies can moderate content -- effectively compelling them to host content they disagree with (which would violate the 1st Amendment). "

    Who gave the companies Constitutional rights?
    The thing about that, is the gov. could give permission to LEt all posts stand as written. Allot of companies would love that and Hate that.
    Less monitoring. Less employees.
    Stopping spam is a 24/7 job and pretty easy. But both sides Want Proof of something(Who knows what).

    Its like 1 side wants everything to seem SUNNY and great.
    The other just dont know HOW NOT to restrict speech.

    reply to this | link to this | view in chronology ]

    • identicon
      Michael, 11 Mar 2021 @ 5:03pm

      Re: what?

      "Who gave the companies Constitutional rights?"

      The 1st Amendment, which doesn't specify that rights only apply to individuals, followed by the 9th Amendment, which is self-explanatory.

      Go back to civics class, and on your way take some English lessons.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 11 Mar 2021 @ 7:35pm

        Re: Re: what?

        Corporations are people my friend.

        Actually, they seem to have more rights than an individual.

        reply to this | link to this | view in chronology ]

      • This comment has been flagged by the community. Click here to show it
        identicon
        WRONG, you anti-American corporatist!, 16 Mar 2021 @ 11:35am

        Re: Re: what? -- WHO is covered? "We The People"!

        The first three words of the Constitution specify WHO is covered: "We The People".

        Corporations are nowhere even hinted. NOT mentioned is NOT an INCLUSIVE term.

        ONLY LAWYERS making up out of the blue a new "legal doctrine" have granted "rights" to corporations. There is ZERO statute explicit on the point.

        Corporations don't exist at all until get permission from "natural" persons, having promised to OBEY our rules and SERVE us. Period.

        Corporations are then SUBJECT TO the whole panoply of Commercial Law in ways that individuals are not, clearly establishing status is merely that of legal fictions, having only privileges revokable at any time.

        Corporations can be taken apart down to atoms without doing least injury to Constitutional principles. Corporations are mere FICTIONS.

        And as practical fact, you don't spew such tripe except in this corporate-friendly venue because you know full well that nearly everyone will reject it. Ask Mitt Romney how well "corporations are persons" goes over.

        reply to this | link to this | view in chronology ]

        • icon
          R.H. (profile), 16 Mar 2021 @ 1:46pm

          Re: Re: Re: what? -- WHO is covered? "We The People"!

          The Constitution doesn't grant rights to people, it forbids the Government from performing certain actions. That being said, the American legal system is based on all things being allowed that aren't specifically made illegal. So, if corporations aren't specifically forbidden from doing something that a natural person is also not forbidden from doing then they can do that thing. If the law doesn't specifically remove a right from corporations that natural people have, then they still have that right.

          All of this is because the law created corporate personhood and hasn't limited it in the ways that you think it has. If you believe that corporate personhood should be limited, that's fine. You should speak with your elected officials about some changes. Until then though, corporations have most of the same rights that you or I have and many of them have the money to more easily afford to exercise those same rights. (For example, most of us can't afford to run political advertising ourselves but, we certainly have the right to do so.)

          reply to this | link to this | view in chronology ]

  • identicon
    Glenn, 11 Mar 2021 @ 2:44pm

    Governments cannot tolerate that there are companies out there that have more power and influence than they--the governments--perceive themselves as having. Privacy? Governments will invade anyone's privacy on a whim, giving any reasons that suit them; the companies only use data freely given to them by people. The governments will take any steps they can to enforce the control that they perceive as slipping away. The funny thing? ...they never had the power or influence or control to begin with. All power, all influence, all control rests with the people--the dupes who believe the lies told by Republicans who seek nothing short of a country controlled by them alone as well as the more rational people who understand the truth. Sadly, they're all idiots with few exceptions.

    The Internet's biggest success is also its greatest failure. It shows us ourselves for who and what we are--all the beauty and all the ugliness. Either way, though, each of us has the right to be who we choose to be, to believe what we choose to believe. No one requires anyone else's approval to exercise that one inalienable right: each person's life belongs entirely to that person. When "content moderation" seeks to excise that from view... well, that's just tragic.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Kent, 11 Mar 2021 @ 7:38pm

    Lol big tech companies not being able to censor speech they don't like is against the 1st amendment? I think Dorsey and Zuckerberg's toes are clean enough, no need to keep sucking on them, Techdirt.

    reply to this | link to this | view in chronology ]

    • icon
      Toom1275 (profile), 11 Mar 2021 @ 7:54pm

      Re:

      Did you know?
      You could have educated yourself on censorship and the constitution instead of embarassing yourself with such a brain-dead comment, Kent.

      reply to this | link to this | view in chronology ]

    • icon
      R.H. (profile), 11 Mar 2021 @ 8:09pm

      Re:

      Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

      Did you catch the part I emphasized there? "Congress shall make no law..." Google is not Congress. Twitter is not Congress. Facebook is not Congress. Since none of those companies is either owned by or a department of the government (either federal, state, or municipal), the First Amendment doesn't apply to them. This point has been made repeatedly by many people but I'll assume the best and assume that you haven't learned this little piece of Constitutional law yet.

      reply to this | link to this | view in chronology ]

      • icon
        thejynxed (profile), 18 Mar 2021 @ 6:20am

        Re: Re:

        The real core of the problem is that the Federal government has more than muddied these waters in recent decades by mandating that certain companies do have comply in this fashion, for instance defense contractors and certain other private companies that receive taxpayer dollars for use in their operation via government contract. Recent Presidents have used EOs to ensure certain companies and even religious organizations follow certain rules established by Congress that were created to regulate government agencies and their employees. SCOTUS has refused to visit any case that challenge these actions.

        reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 18 Mar 2021 @ 6:40am

          Re: Re: Re:

          So, you're saying that some private companies have been ordered to follow certain rules when being paid by the government to act on its behalf - and that muddies the water for companies who do neither? That doesn't make much sense to me, can you explain?

          reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 11 Mar 2021 @ 8:20pm

      Moderation is a platform/service owner or operator saying “we don’t do that here”. Personal discretion is an individual telling themselves “I won’t do that here”. Editorial discretion is an editor saying “we won’t print that here”, either to themselves or to a writer. Censorship is someone saying “you won’t do that anywhere” alongside threats or actions meant to suppress speech.

      Now, which one of those applies to Twitter banning some racist wastebasket over their use of the n-word??

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 11 Mar 2021 @ 11:27pm

      Re:

      "Lol big tech companies not being able to censor speech they don't like is against the 1st amendment?"

      Yes, the government compelling private entities to host speech against their will is against the first amendment, as that's directly against the free exercise of speech and assembly enshrined in the constitution.

      Do you need remedial lessons about it? 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.

      reply to this | link to this | view in chronology ]

      • 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.

        reply to this | link to this | view in chronology ]

      • This comment has been flagged by the community. Click here to show it
        identicon
        Hot FeOOH, 16 Mar 2021 @ 11:36am

        Re: Re: WRONG as usual, "PaulT".

        Yes, the government compelling private entities to host speech against their will is against the first amendment, as that's directly against the free exercise of speech and assembly enshrined in the constitution.

        NO, actually, self-praising smartypants, happens every day for corporations that are regulated as utilities. We don't allow ISPs / common carriers to do this!

        My view is that mega-corporation "platforms" should regulated as utilities. Since they're only legal fictions, requires only a few words of federal statute to make that so -- though, sure, it'd be strongly opposed by the fascist legal fictions with their armies of lawyers!

        reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 17 Mar 2021 @ 12:09am

          Re: Re: Re: WRONG as usual, "PaulT".

          "We don't allow ISPs / common carriers to do this!"

          ISPs and common carriers are completely different things, and that also has nothing to do with the platforms you whine about.

          Why is it that whenever you try to smugly proclaim me as wrong, you just further expose your own ignorance?

          "My view is that mega-corporation "platforms" should regulated as utilities"

          I agree that ISPs should be common carriers in order to protect net neutrality. I don't agree that small ISPs should be exempt from rules just because of their size, and I certainly don't agree with your ultra-communist view that private property should be stripped from those who disagree with you politically and placed in control of the state.

          reply to this | link to this | view in chronology ]

        • icon
          Stephen T. Stone (profile), 18 Mar 2021 @ 12:13pm

          My view is that mega-corporation "platforms" should regulated as utilities.

          I’m sure you sincerely believe that, komrade.

          reply to this | link to this | view in chronology ]

    • icon
      bhull242 (profile), 14 Mar 2021 @ 4:48pm

      Re:

      I think you missed the part where this particular article is about a bill that would force tech companies to do more moderation.

      And no, companies moderating content on their privately owned websites and servers is not against the 1st Amendment as they are not in any way a government or part of the government; rather, between the 1A right against compelled speech and the 1A right of association, not allowing companies to moderate speech on their websites is against the 1A. Again, there are court cases that point to this being the case.

      And no, private companies removing unwanted content and/or users from their privately owned websites and/or servers is not censorship, either. There is a difference.

      Look, I am no fan of Twitter or Facebook; I mostly left them a long time ago. However, I know how to read the whole article rather than just the introduction, I know what the law is on this issue, and I know what words mean. I don’t think you do.

      If there was a white supremacist platform for user content owned and operated by a single private citizen who was also a bigot or by a corporation run by a bigot, and that platform removed speech that didn’t conform with those ideals, while I would find the platform to be, at the very, very least, distasteful, and more likely hateful and abhorrent, I would still defend their right to exist, say such horrible things, and remove content they dislike even if I think that content is perfectly fine. I wouldn’t support or use such a platform, and I would likely heavily criticize it both publicly and privately, but I wouldn’t want the government to ban it entirely or stop it from moderating content on the platform however it sees fit. That’s how the 1A and private-property rights work. I also wouldn’t say that they’re censoring anyone or violating anyone’s 1A rights. It doesn’t matter how big or small it is (though if such a platform got even close to as large as either Facebook or Twitter, I’d be admittedly shocked and dismayed at the state of humanity); I’d feel the same on the issues of 1A rights, private property rights, and government interference with such either way.

      reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 16 Mar 2021 @ 8:52am

      Re:

      "Lol big tech companies not being able to censor speech they don't like is against the 1st amendment?"

      Yep. And proving that you didn't read the constitution won't change that.

      Here's the thing - 1A applies to government. Never to private individuals.

      Therefore no privately owned platforms can ever violate 1A - but forcing them to host speech selectively by law surely is that very violation of 1A you were looking for.

      Seriously, how badly educated are you right-wing nutbags if a european knows your own constitution better than you do?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 Mar 2021 @ 1:07am

    There is security theatre, acts that do not protect anyone but might look good,
    Now there's political theatre, politicians making up bills that target big tech Google Facebook about moderation , content
    , bills that are clearly not likely to pass because they put limits on free speech and are contrary to the first amendant
    Would would hope that Democrats would be above this pointless exercise
    It's like years ago there were attempts to pass bills targeting
    violent videogames which never went anywhere
    Even if these laws passed they would not effect websites based outside America
    And of course laws like this would stop startups from offering
    new services or apps
    since they cannot afford to employ 1000s if moderators

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Make this the First Word or Last Word. No thanks. (get credits or sign in to see balance)    
  • Remember name/email/url (set a cookie)

Close

Add A Reply

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Make this the First Word or Last Word. No thanks. (get credits or sign in to see balance)    
  • Remember name/email/url (set a cookie)

Follow Techdirt
Insider Shop - Show Your Support!

Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Recent Stories

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it
Close

Email This

This feature is only available to registered users. Register or sign in to use it.