Tech Trojan Horse: How the Senate is Poised to Codify Censorship of Social Media

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.

103 thoughts on “Tech Trojan Horse: How the Senate is Poised to Codify Censorship of Social Media”

  1. BTW: “NUDGE” is a Cass Sunstein Ideology – Strategy! / Follow Up to my previous comment about my experience associated to Amy Klobuchar (If you want to lose faith in Democracy talk to a congressman) – / Sound a little “Big Brothery”? – Cass Sunstein was supposed to be Barack Obama’s CIO… but he wrote a Harvard paper about how the GOVERNMENT should BAN / CRIMINALIZE CONSPIRACY THEORIES … engage in the COGNITIVE INFILTRATION and undermine whomever they deem to be “Conspiracy Groups”. These “officials / representatives” think they know better than us plebes and assume that “We the People” are often not the best judges / arbiters of what we believe to be in out best interests. They are acting more like “parents” than representatives. Cass Sunstein even wrote a book about it… http://www.behavioralscientist.org/nudge-review-cass-sunsteins-why-nudge/ – Jonathan, if you have any insights / comments / questions look me up. Peace. Mark J. Novitsky BTW: FB whistleblower Frances Haugen provided USG with internal documents of Criminal Activity within FB like Drug & Sex Trafficking and Money Laundering… what is Merrick Garland DOJ/FBI and Amy Klobuchar waiting for?

  2. The word “nudge” does not sound nonthreatening to me. Nudged where? Nudged by who? Don’t need no nudging or prompting. I’m a free man and have a mind of my own.

  3. “The United States remains a fortified Troy for free speech.”

    That is simply not true. Mask mandates, upheld by SCOTUS and most state and local courts disproves that. How? Masks have always been, “nudges,” Behavioral science. The use of symbols to manipulate and coerce a desired behavior. And symbols are a form of speech – one of the earliest forms of speech, in fact, understood at primal levels. The speech that masks communicate is fear. “Be afraid of deadly pathogens in the air. Stay away from others.” That was the actual articulated basis for masks among the behavioral scientists advising government officials on NPI mitigation strategies. Epidemiologists are trained in behavioral science – they seek to change human behavior in pandemics.

    Nudges are one thing, but when they cross into “shoves” and “slaps” – behaviorist lingo for more aggressive nudges – they become an assault on constitutional rights and freedom. In the case of mask mandates, mandated speech. You must say, “fear,” on your face when you are where masks are required. Even if you don’t fear or believe others should be fear. And mandated speech is a violation of free speech rights in this “fortified Troy.” Because if you can mandate speech you can also prohibit it. The government itself has given itself permission to restrict our right to say, “we have nothing to fear but fear itself,” during the pandemic, which is what going maskless is under this construct of mandatory symbolic speech. Mandated speech is the other side of the same free speech coin as prohibited speech.

    When the CDC and public health officials held up masks and said they were the most effective means of preventing transmission of Covid as determined by the “best science,” they were never challenged as to exactly what type of science. They made everyone assume they meant medical science by wearing white coats and bearing “Dr.” titles ahead of their names. Doctors of what? The social sciences. Behavioral sciences. The science that studies the effectiveness of propaganda in changing the behaviors of people. The propaganda demanded of everyone compelled, coerced, manipulated to spread a symbol of fear across their faces. Upheld by courts across the nation, including SCOTUS. The Best Science turned out to be a MOAB exploded on the fortifications of our First Amendment free speech rights.

    All of these assertions I make are supported by volumes of behavioral science publications originating in March, 2020, when the “science” that Fauci said changed, because, “that’s what science does,” and continuously published since. They brag about how proud they are at their contribution to mitigating the pandemic. Not hard to find if you bother looking for it. Too bad our elected officials and media never bothered to ask the “experts” what type of science they were claiming supported them. We might still have a fortified Troy for free speech in the United States if they had.

    This Nudge science is a mortal threat to our nation’s freedom. Review the book, “A State of Fear” by Laura Dodsworth about nudge in the UK. Their nudge unit established at the same time under Cameron as it as in the US under Obama. It is the “Science of Totalitarianism,” as described by practitioners of it. It must be resisted and rebuked if we wish to keep our constitutional republic. The First Amendment is sacrosanct, the most important of all to protect at all costs. Even in a pandemic.

  4. Something else to look into in every big regulatory bill like this . . . it is a guaranteed employment act for a large cadre of lawyers . . . and if the bill provides a method for recovery of legal fees–or government payment of legal fees–it will devolve into endless litigation.

  5. My solution is to create a centralized database of everything the social media companies censor, with specific explanations of why they removed the content.
    Once we have a database of such, we can run queries on the database to determine if the social media company is applying its rules equally and if not, open them up to a revocation of their section 230 protections, because if they are not enforcing their rules equally they are no longer a platform, but are a content provider.

  6. Remember that to “nudge” is a tactic of progressives and socialists to move people gently in toward their way of thinking and behaving. The Senator has Kahones to use the word directly and think we won’t notice.

  7. Mespo, why don’t you tell everyone about the time your Trojan fell off inside a horse?

  8. I think that Turley has nailed this. Consider the article linked below. ‘Misinformation’ is defined by the censor, not by the truth. Do we want to give our government the power to decide the ‘truth’ and to block ‘misinformation’ or do we want to have the freedom to see it all and sort it out for ourselves?

    I am for freedom of the press because the truth is the most powerful weapon against a tyrant.

    https://www.msn.com/en-us/news/world/putin-s-disinformation-is-so-effective-that-ukrainians-can-t-convince-their-own-families-in-russia-they-are-under-attack/ar-AAUMuyQ?ocid=msedgntp

  9. Amy Klobuchar is “my” acting US Senator IS A TROJAN HORSE! I know her very well… and met with her in 2006 when she was running for the MN Senate Seat “vacated” by 1 term (D) MN Senator Mark Dayton. In 2005 Mark Dayton pulled a Senate FBI FOIA request on my behalf against my former employer and MASSIVE USG IC / DOD “Strategic Partner” IT / TeleCom / A-I Denver-based Tele Tech Holdings… was involved in active Securities Fraud combined with Institutional and Systemic Federal Criminal and Civil Rights Privacy Abuses. – They attempted to sue me in Denver Fed Court and I “won” a Dismissal With Prejudice. I warned Amy Klobuchar (2006) about what I called then… “The Military Industrial Surveillance Complex”… now everyone calls “BIGTECH”. She did nothing… Mark Dayton was forced to vacate his seat and then later my other US Senator MN (D) Al “But I can assure you this isn’t about spying on the American people” Franken (Can you hear me now?) stated this opinion as then acting Senate Judiciary Subcommittee Chairman for Privacy, Technology and the Law. I assure you that when he said that in 2013… he (like Amy Klobuchar) knew he was lying. But then he came around in 2019 and gave a speech at the OPEN MARKET INSTITUTE and he branded “BIG TECH” as a HUGE THREAT to Americans Privacy, Liberty, Freedom and Democracy itself… then a week later… those pictures came out. He resigned. – What I have warned now approaching 2 DECADES demands the only and long-overdue reasonable and logical conclusion… a call for an INDEPENDENT Immediate Re-Constitution of the 1975 U.S. Senate Select Committee To Study Governmental Operations With Respect To Intelligence Activities. AKA – “The Church Commission 2.0″ – Not some BS PR STUNT LOOP-HOLE-RIDDEN TROJAN HORSE legislation that does more HARM than good! – Who said this and when?…”We are rapidly entering the age of no privacy, where everyone is open to surveillance at all times; where there are no secrets from government.” – SCOTUS William O. Douglas 1966! / We are still in the kiddie pool… as bad as you think it is I assure you it’s WORSE! Peace. Mark J. Novitsky “In a world of universal deceit telling the truth is a revolutionary act.” Dangerous too.

  10. A constitutionally oath sworn official coercing a private company to censor does indeed violate the First Amendment. A government entity is driving the infringement on free speech, essentially “deputizing” a private company. That is outlawed under the First Amendment. Democrats once opposed things like “farming-out” torture and war crimes to private companies.

    A better solution would be to adopt Jack Valenti’s Hollywood rating system (R, PG, Nudity, Violence, etc) that empowered parents or adults instead of government officials or those deputized by government officials. On social media, users could self-rate their postings before making them public.

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