Below is my column in the Hill on the new NUDGE Act, proposed by Sen. Amy Klobuchar to reform social media. It is, in my view, a Trojan horse bill that threatens core free speech values.
Here is the column:
Beware of politicians bearing reforms. Since the Trojans first wheeled a wooden horse into their fortified city, many are leery about “gifts” that may be heavily laden with dangers. That is true with the Trojan horse legislation just offered by Sen. Amy Klobuchar (D-Minn.). In the name of “reforming” the internet and bringing tech monopolies to heel, Klobuchar has penned a “Nudge Act” that would expand corporate censorship and speech controls.
Even the name is designed to be non-threatening. After all, who could oppose an act titled “Nudging Users to Drive Good Experiences on Social Media”? It is enough to garner the support of Sen. Cynthia Lummis (R-Wyo.). The act, however, is less of a nudge and more of a shove toward approved content and choices.
For years, President Joe Biden and Democratic members of Congress have pushed for greater and greater censorship on the internet and on social media. Liberals have found a winning strategy in using corporate censorship to circumvent constitutional limits on governmental speech controls. Senators like Richard Blumenthal (D-Conn.) warned social media companies that they would not tolerate any “backsliding or retrenching” by “failing to take action against dangerous disinformation,” and demanded “robust content modification” to block disfavored views on subjects ranging from climate control to elections to the pandemic.
The Nudge Act is arguably the most insidious of these efforts. Under the Act, Congress would enlist the National Academy of Sciences, Engineering and Medicine (NAS) to recommend sweeping design changes to Big Tech platforms like Facebook, Instagram and YouTube to “reduce the harms of algorithmic amplification and social media addiction.”
The Act is a masterpiece of doublespeak. It refers to developing “content-agnostic interventions” that could ultimately be enforced by a commission and the Federal Trade Commission (FTC). That sounds great; after all, many of us have called for years for a return to content neutrality on social media where sites function more as communication platforms, similar to telephone companies. However, that is clearly not the intent of the bill’s sponsors, who see it as a weapon against “misinformation.” That was made clear by Klobuchar herself: “For too long, tech companies have said ‘Trust us, we’ve got this.’ But we know that social media platforms have repeatedly put profits over people, with algorithms pushing dangerous content that hooks users and spreads misinformation.”
Liberal groups like Public Knowledge which support the bill also openly discuss its real purpose, declaring that it will halt “the promotion of misinformation” and develop new avenues “to reduce the spread of misinformation.” Klobuchar has repeated such descriptions in support of the bill.
How is combatting “misinformation” content-neutral? The answer will be imposed by a new commission and lead to a site’s failure to take “appropriate” measures being declared “unfair or deceptive acts or practices.” That would create a glacial chilling effect on these companies, which will err on the side of censorship. After all, Democrats have maintained for years that “misinformation” is simply false and not really a matter a partisan content discrimination. With Nudge, Klobuchar seems to be making her own ‘Trust us, we’ve got this” pledge to fellow Democrats.
The key term used in the Act is “algorithmic amplification.” Klobuchar makes clear the intent to use algorithms to stop “pushing dangerous content.” Democrats in Congress have argued for years that these companies need to protect citizens from bad choices by using beneficent algorithms to guide us to “healthier” viewing and reading habits.
The most extreme effort was a letter from Democratic members to pressure companies like AT&T to reconsider whether viewers should be allowed to watch Fox News and other networks. It does not matter that Fox News is the most popular news cable station and even has a greater percentage of Democratic viewers than CNN. (For the record, I appear as a legal analyst on Fox). The members insisted that “not all TV news sources are the same” and called on these companies to protect viewers from “dissemination” of false viewpoints.
Sen. Elizabeth Warren (D-Mass.) has called for these companies to protect citizens from poor reading choices by tweaking algorithms to steer them away from disfavored views. It is the free-speech version of the rejected “Big Gulp” laws. Warren wants companies to amplify “true” books on issues like climate change and direct searches away from “misleading” books.
Some liberal think tanks admit it is not clear that such manipulation of information will help, yet they still appear all-in on trying. Brookings Institution declared: “Even though cause and effect are hard to discern in social media, it is undeniable that algorithms contribute to hate speech and other information disorder on social media.”
If the Senate truly wanted content neutrality, it would not require a new army of internet apparatchiks. It would condition the continued immunity protection under Section 230 of the Communications Decency Act on removing “content modification” and amplification programs. Instead, it seeks to place content under the oversight of a commission while reaffirming the need to stop, in Klobuchar’s words, the spread of “misinformation.”
There are aspects of the law that are positive, like the study of social media addiction and requirements for greater transparency from these companies. However, Congress is adept at the art of Trojan-horse legislation, and it is hard to argue against “studying” issues and recommending changes. Yet, this bill is designed to create a new system of content review and revision. It is viewed by the industry as designed “to slow down how misinformation or other harmful content spreads on social media.”
A governmental regulation combatting misinformation likely would be unconstitutional. However, the obvious desire is for these companies to self-regulate and avoid any problems through the “robust content modification” demanded by Democrats. Moreover, it is not clear how courts would react to “circuit-breaker” tactics that limit or slow the dissemination of information, though this also could “neutrally” slow all stories of public importance from going viral.
Despite the unrelenting campaign against free speech in Congress, there remain political and constitutional barriers that have proven insurmountable thus far. The United States remains a fortified Troy for free speech.
Notably, when the Greeks sought to take Troy, they hid their best warriors within the giant wooden horse that the Trojans then blissfully pulled into their city over the warnings of Trojan priest Laocoön. In this case, the crack troops hidden within Klobuchar’s wooden horse are expected to be the staff of the NAS and the FTC, who could cloak content modification in pseudo-scientific terms. They would be assisted by an increasingly anti-free speech media and academia, including the World Health Organization’s chief who recently supported censorship to combat “the infodemic.”
Before this Trojan Horse is wheeled into our own “city on the hill,” Americans should consider what’s inside the Nudge Act.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.