State Legislators Are Demanding Websites Moderate Less AND Moderate More; Federal Law Prohibits Both
from the state-legislators-need-to-knock-it-off dept
Local politicians across the political spectrum are trying to force websites to moderate their content in a manner the politicians want. Some (mainly Democrats) are trying to push for companies to remove more content. Some (mainly Republicans) are pushing companies to stop removing certain kinds of content. In both cases, trying to force specific editorial stances — either hands on or hands off — raises serious Constitutional issues. And this is partly why Congress, wisely, decided in 1996 with Section 230 of the Communications Decency that no state could pass a law that interfered in the editorial decision making process of websites. Because without that, websites would have to deal with a confusing and contradictory patchwork of laws — some of which demanding certain types of content not be hosted, with others demanding certain types of content must be hosted.
Let’s start with Democratic legislators, who have been introducing a flurry of bills to pressure websites to take down content those politicians find problematic. We’ve talked about proposals in New York, Colorado, Washington, and California to pressure websites to be more aggressive in taking down “misinformation” or “disinformation” or “hate speech” — all of which are likely constitutionally protected. California, in fact, has a whole slate of bills that would likely impact content moderation in questionable ways.
Then there’s Minnesota’s bizarre bill, which appears to be on a dangerous fast track to being signed into law, which targets “algorithms,” and, in the process, would similarly impact a website’s ability to moderate its community.
On the Republican side, both Florida and Texas have successfully passed laws that would require less content moderation on websites, and both laws have been tossed out as unconstitutional (though both are now on appeal). They’re not the only states trying to do this. We’ve talked about Georgia and Utah as well, both of which had similar bills (though it appears both died as time ran out of those states’ legislative sessions). And there are other states we didn’t even get a chance to write about, like Ohio, whose legislature had a similar bill introduced. There has been talk of similar bills in multiple states.
These Republican bills all attempt to force websites to moderate less — which sometimes seems quite at odds with other Republican bills that seek to suppress other kinds of speech. While these bills all use different methods, the goals are generally the same. To greatly limit the ability of websites to moderate specific content — content that is currently in favor among Republican politicians and (more importantly), their base.
While the two laws that have been signed into law so far (Texas’ and Florida’s — Utah’s passed the legislature, but was wisely vetoed by the governor) were thrown out as unconstitutional, it’s important to also point out that both should have been blocked because federal law, namely Section 230 of the Communications Decency Act, preempts any state law that tries to impose restrictions (or demands) on how websites moderate. Specifically, 230(e)(3) notes that “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with” Section 230.
And that’s incredibly important. As we noted in an earlier post:
Just think about the impossibility of trying to simultaneously satisfy, in today’s political climate, what a Red State government might demand from an Internet platform and what a Blue State might. That readily foreseeable political catch-22 is exactly why Congress wrote Section 230 in such a way that no state government gets to demand appeasement when it comes to platform moderation practices.
But that hasn’t stopped both Red States and Blue States from trying to do exactly what Section 230 rightly bars. You have Red States seeking to force websites to host material they don’t want to host in perpetuity, while Blue States are trying to force websites to pull down content that those sites might wish to continue to host. Both are problematic on their own.
But when combined, they create an absolutely impossible scenario for any website covered by these bills. Some states demand you leave up certain content that other states are demanding be taken down (and yes, it’s not hard to envision scenarios in which content would meet the criteria of both of these types of laws). Section 230’s preemption feature is designed to prevent this kind of impossible scenario, and yet states keep pushing these bills, whether it’s done for earnest reasons or simple political grandstanding.
Thankfully, the authors of Section 230 included this key preemption clause, recognizing how impossible this would be had it been any other way. It would be nice if these states were reminded of this as they keep pushing these bills.