from the the-1st-amendment-callling dept
What is it with politicians (and other commentators) who keep confusing the 1st Amendment with Section 230? The latest is Rep. David Cicilline, who wants to remove Section 230 protections from internet platforms that host “demonstrably false” political ads:
Rep. David Cicilline is drafting legislation to take away a broad tech liability protection for online platforms that knowingly publish ?demonstrably false? political ads, he says at a National Association of Broadcasters? event.
This has been an issue a bunch of folks have been raising of late. Elizabeth Warren and Nancy Pelosi have both expressed anger that Facebook has chosen not to fact check political videos. However, as we’ve noted repeatedly, there are all sorts of problems with a proposal like this.
First, and perhaps biggest, is the 1st Amendment. Contrary to what many people seem to believe, many false statements are still protected under the 1st Amendment — and while internet platforms have their own rights to take down or leave up what they want, having the government step in and create an effective mandate to take down “false” information will almost certainly violate the 1st Amendment, as it’s not a content-neutral regulation. As the Supreme Court noted in United States v. Alvarez, plenty of “demonstrably false” information is still Constitutionally protected:
In light of the substantial and expansive threats to free
expression posed by content-based restrictions, this Court
has rejected as ?startling and dangerous? a ?free-floating
test for First Amendment coverage . . . [based on] an
ad hoc balancing of relative social costs and benefits.?… Instead, content-based restrictions on speech have
been permitted, as a general matter, only when confined
to the few ??historic and traditional categories [of expression] long familiar to the bar,?? …These categories have a historical foundation in the
Court?s free speech tradition. The vast realm of free
speech and thought always protected in our tradition can
still thrive, and even be furthered, by adherence to those
categories and rules.
Absent from those few categories where the law allows
content-based regulation of speech is any general exception to the First Amendment for false statements. This comports with the common understanding that some false
statements are inevitable if there is to be an open and
vigorous expression of views in public and private conversation, expression the First Amendment seeks to guarantee.
Later in that ruling, Justice Kennedy notes:
Were the Court to hold that the interest in truthful discourse alone is sufficient to sustain a
ban on speech, absent any evidence that the speech was
used to gain a material advantage, it would give government a broad censorial power unprecedented in this
Court?s cases or in our constitutional tradition. The mere
potential for the exercise of that power casts a chill, a chill
the First Amendment cannot permit if free speech,
thought, and discourse are to remain a foundation of our
And thus, once again, it appears that a politician is confusing the power of the 1st Amendment, and assuming that it is coming from Section 230. This is incorrect.
The second issue with such a law is that while “demonstrably false” seems like an easy classification, it’s not at all easy in practice. As we’ve discussed many, many times in the past, content moderation at scale is impossible to do well, and it only seems easy until you actually have to do it. Case in point: just last week there was an uproar and controversy over an edited video that the Mike Bloomberg campaign posted to social media. The video shows Bloomberg on the debate stage last week, asking if any of the other candidates on stage had started a business — and then places clips of each of the other candidates looking around awkwardly, with an overlay of cricket sounds. The video is obviously meant to imply that this extended silence after Bloomberg asked the question is what actually happened on stage — though it is not. The clips were obviously taken from other moments in the debate.
Is that “demonstrably false”? Well, that depends on your perspective. It’s absolutely misleading. But, it could also be seen as a joke or satire or making a point. Indeed, in the link above, Twitter told reporters that the video would violate its policies as “manipulated media,” but Facebook says it would not, since its policies do “not extend to content that is parody or satire, or video that has been edited solely to omit or change the order of words.” And, while you may agree or disagree with either platforms’ decision on this, how would Cicilline’s proposal handle such an issue? If put in place, it’s likely that all platforms would then seek to remove this video, out of fear of it opening up the potential for massive liability.
The courts are extremely loathe to get involved in political speech — which, quite frequently, involves misrepresentation, false, or misleading statements by candidates about each other. Trying to put an extra burden on social media platforms by potentially removing Section 230 protections for not magically being able to determine “truth” is not only unconstitutional, but likely putting internet platforms in an impossible position.
Filed Under: 1st amendment, david cicilline, demonstrably false, intermediary liability, liability, political ads, political speech, section 230