The great civil libertarian Justice Louis Brandeis once warned that “the greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” New York State Democrat Senator Brad Holyman is one of those “men of zeal.” With the approaching anniversary of the Jan. 6th riots, he has proposed a new law that would legislate an even greater level of censorship to prevent the “social media amplification” of views that are deemed harmful or “disinformation.” It is only the latest example of our “whatever it takes” politics.
Under S.7568, there would be criminal liability for anyone who makes “a false statement of fact or fraudulent medical theory that is likely to endanger the safety or health of the public.”
If this language is chilling for anyone who values free speech, Hoylman’s defense will freeze you to the bone. It is a censorship measure introduced on “the anniversary of the notorious January 6 insurrection at the U.S. Capitol, and as vaccine hesitancy continues to fuel the Omicron variant.” It is a mix of algorithmic conspiracy theory and anti-free speech doublespeak:
“Social media algorithms are specially programmed to spread disinformation and hate speech at the expense of the public good. The prioritization of this type of content has real life costs to public health and safety. So when social media push anti-vaccine falsehoods and help domestic terrorists plan a riot at the U.S. Capitol, they must be held accountable. Our new legislation will force social media companies to be held accountable for the dangers they promote.”
For years, social companies have claimed protection from any legal consequences of their actions relating to content on their websites by hiding behind Section 230 of the Communications Decency Act. Social media websites are no longer simply a host for their users’ content, however. Many social media companies employ complex algorithms designed to put the most controversial and provocative content in front of users as much as possible. These algorithms drive engagement with their platform, keep users hooked, and increase profits. Social media companies employing these algorithms are not an impassive forum for the exchange of ideas; they are active participants in the conversation.”
The rationale is perfectly Orwellian. It treats the failure to censor as being a participant in “disinformation.”
This is only the latest anti-free speech measure to be introduced on the federal or state levels. In one critical hearing, tech CEOs appeared before the Senate to discuss censorship programs. Twitter CEO Jack Dorsey apologized for censoring the Hunter Biden laptop story, but then pledged to censor more people in defense of “electoral integrity.”
Delaware Sen. Chris Coons, however, was not happy. He was upset not by the promised censorship but that it was not broad enough. He noted that it was hard to define the problem of “misleading information,” but the companies had to impose a sweeping system to combat the “harm” of misinformation on climate change as well as other areas. “The pandemic and misinformation about COVID-19, manipulated media also cause harm,” Coons said. “But I’d urge you to reconsider that because helping to disseminate climate denialism, in my view, further facilitates and accelerates one of the greatest existential threats to our world.”
Connecticut Sen. Richard Blumenthal also warned that he and his colleagues would not tolerate any “backsliding or retrenching” by “failing to take action against dangerous disinformation.” He demanded “the same kind of robust content modification” from the companies – the new Orwellian term for censorship.
In the meantime, Facebook is continuing its creepy corporate commercials to try to convince a free people to embrace censorship (or “content modification”). It is working. Free speech advocates are facing a generational shift that is now being reflected in our law schools, where free speech principles were once a touchstone of the rule of law. As millions of students are taught that free speech is a threat and that “China is right” about censorship, these figures are shaping a new society in their own intolerant images.
The New York legislation would gut free speech by creating criminal penalties for views deemed “false” despite the continuing debates over issues like the efficacy of masks or vaccine protocols. The First Amendment is premised on the belief that this right is essential to protecting the other freedoms in the Constitution. It is the right that allows people to challenge their government and others on electoral issues, public health issues, and other controversies.
This is why I have described myself as an Internet Originalist:
The alternative is “internet originalism” — no censorship. If social media companies returned to their original roles, there would be no slippery slope of political bias or opportunism; they would assume the same status as telephone companies. We do not need companies to protect us from harmful or “misleading” thoughts. The solution to bad speech is more speech, not approved speech.
If Pelosi demanded that Verizon or Sprint interrupt calls to stop people saying false or misleading things, the public would be outraged. Twitter serves the same communicative function between consenting parties; it simply allows thousands of people to participate in such digital exchanges. Those people do not sign up to exchange thoughts only to have Dorsey or some other internet overlord monitor their conversations and “protect” them from errant or harmful thoughts.
The danger of the rising levels of censorship is far greater than the dangers of such absurd claims of the law or science — or in this case both. What we can do is to maximize the free discourse and expression on the Internet to allow free speech itself to be the ultimate disinfectant of disinformation.