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.
Jonathan: For you the sky is falling. The threat to the “free speech” rights of conservatives is everywhere. They are shouted down and censored. Now your hair is on fire over Amy Klobuchar’s “Nudge Act” and the inquiry by two congress persons re AT&T’s policies vis-a-vis Fox News. Although Fox spews out lies and harmful disinformation everyday I doubt AT&T is going to immediately change its policies in response to one inquiry by two representatives. But I can see why you are concerned. If AT&T were to not carry Fox that would adversely impact your paid gig as Fox’s official “legal analyst”. Self interest. That’s really what this is all about, isn’t it? That said it’s not all doom and gloom on the “free speech” front.
In Tennessee there is a growing movement against the push by GOP state legislators to silence teachers and prevent students from learning about controversial subjects. There are two bills being considered by the GOP controlled legislature. HR1944 would prohibit use of books or supplementary materials in public schools that contain “obscene materials”. HB800 would ban materials that “promote, normalize, support, or address lesbian, gay, bisexual, or transgender issues or lifestyles”. “Lifestyles” was the word that got my attention. The GOP Neanderthals in Tennessee still think sexual identity is a matter of choice. They apparently still carry the DNA of their ancestors who prohibited the teaching of evolution in public schools. Clarence Darrow would be rolling over in his grave! Tennessee school districts are already banning books deemed “obscene” or “pornographic”.
But the good news is that students are fighting back against attempts to censure what they read or discuss in class. In Memphis students have formed the “Tennessee Youth Coalition” that seeks a student voice over the proposed GOP legislation and through social media are informing adults about the threat to free speech. Give it to the kids. They are smart. They have read George Orwell. They know they won’t be harmed by reading books by black authors, books about slavery and the Holocaust or books dealing with gender identity. They are saying it is better to learn the facts in school rather than hear Uncle George protest that being gay is a “sin against God”. One student, Sophie Harms, said it best: “Just like every student, it is imperative that I read these things because they are real…We do not occupy a world free of pain and agony. So why would our libraries be free from these?”
Now as a “free speech” advocate–one who says free speech is a “human right” why are you silent when the kids and teachers in Tennessee and elsewhere need your support?
There is only one answer to your question, Turley yells suey, and the deplorables come running. Sad but true.
They know they won’t be harmed by reading books by black authors, books about slavery and the Holocaust or books dealing with gender identity
N o one is talking about banning the books, just managing them for age appropriateness. Prevent some books used as course source material and taken as the only “proper” perspective.
There are a whole host of books that could be used. “The Bell Curve” comes to mind.
The difference is that public schools are run by the state and funded by taxes whereas the Nudge Act targets private businesses.
Any government representative promoting or employing a private person or industry to perform any act otherwise already determined to be illegal if performed by the government is a crime, per the SCOTUS ruling.
Right Dennis, you want teachers to indoctrinate 5-7 year olds in gender identity and all that type of stuff. Good for you, but stay 100 feet from any school.
Bitcoins are BS.
Y’all know what BS means don’t ya?
Liberals have found a winning strategy in using corporate censorship to circumvent constitutional limits on governmental speech controls.
Now where would Sen. Klobuchar ever conceive of such plan that would enlist corporations to partner with the government? Welcome to The Great Reset.
If already existing 4-IR developments are any indication of the future, then the claim that it will contribute to human happiness is false. These developments include Internet algorithms that feed users prescribed news and advertisements and downrank or exclude banned content; algorithms that censor social media content and consign “dangerous” individuals and organizations to digital gulags; “keyword warrants” based on search engine inputs; apps that track and trace COVID violations and report offenders to the police; robot police with scanners to identify and round up the unvaccinated and other dissidents; and smart cities where residents are digital entities to be monitored, surveilled, and recorded, and where data on their every move is collected, collated, stored, and attached to a digital identity and a social credit score.
https://imprimis.hillsdale.edu/what-is-the-great-reset/
Kool!
Amy K….might as well be “Anonymous” and ignored out of hand.
She is a brain dead Leftist of the worst kind….and must be treated with complete opposition.
Nudge….nope….just give her a strong boot in her behind and send her and her anti-freedom ideas down the road.
Retain protections for Facebook, Twitter, etc….is fine….so l long as they are banned from interfering with anything that is posted and extend the liability to the Posters.
Otherwise if they wish to interfere, moderate, or remove or ban content and posters….they they should have no protections.
They should not have it both ways and both ways be in their favor.
And to think Amy K. was at one time a viable candidate to become the US President……….my word, what has the voting populace of this country come to.
This isn’t a Democrat versus Republican issue — and Professor Turley knows that better than most.
This started long ago, with the changes in our public elementary and secondary school systems in this country.
A key problem to this internet information/disinformation/misinformation/propaganda ‘issue’ is that human beings who are on social media don’t have the mental capabilities to discern, to discriminate, between and among the words they are reading/hearing………those critical thinking and evaluative skills are in short supply among today’s social media users, by and large.
The “Nudge Act”
Now *that * is censorship. That is the use of the government’s police powers to control and ban ideas. It is the use of physical force against the mind.
There’s a brilliant scene from a movie that captures eloquently the goals and psychological motivations of those who support a “Nudge Act.” A tyrant and one of his lackeys are standing at a balcony, observing yet another beheading:
Lackey: And why are we decapitating this citizen?
Tyrant: Because he had been thinking.
The left must have a buzz word of the month club, micro aggression, dog whistle, divisive, alt-right, misinformation, nudge. I’m still trying to figure this one out, re-imagine.
And if you oppose this and other forms of censorship you are a NAZI. Guess you are down in the pit with the rest of us deplorables, JT.
antonio
“NUDGE” as in Cass Sunstein?? Lying Samantha Powers husband wrote the book on how to trick people or “nudge” them into doing what you want they to. Using the same terminology to lie to us is all they EVER do.
Let me know when they jail the conspirators of the Russian Hoax…from Hillary, Obama, Biden, DOJ, FBI, Schiff, Nadler, down?
Everyone knows that Hillary paid a UK spy to work with the Russians to overthrow the election…TREASON! The rest of the Democrats assisted in the biggest Crime in American History!
I agree with Turley’s idea to limit 230 immunity to platforms that do not engage in “content modification.” A suggestion I have made before is to limit content moderation to those limited categories of speech that have been found by the Supreme Court to be outside the scope of First Amendment protection. This would give the platforms no greater right to limit speech than the government has.
It is contrary to the companies’ own 1st Amendment rights to “give the platforms no greater right to limit speech than the government has.”
That would be unconstitutional.
It would be legal to give them that *option* in exchange for 230 protection, but there is no guarantee that they’d choose what you prefer. Have you considered what it will look like if they instead choose to opt out of 230 protection, and do you understand this would mean greater censorship on their end?
That would be their choice. The premise of immunity is that they are platforms not publishers. If they want immunity they should not edit.
Againg: Have you considered what it will look like if they instead choose to opt out of 230 protection, and do you understand this would mean greater censorship on their end?
Up to them. If they choose to edit there is no reason to grant them immunity. What will happen in response is for the market to decide. Some platforms will choose to forfeit immunity and others won’t. I don’t think you can predict in advance how it will evolve.
I think we can predict some things based on existing evidence (existing TOSs, existing moderation), and my point was mostly that you should understand the implications of the proposal, which is that it will lead to greater censorship on many sites, and perhaps will result in some sites deciding that it’s not worth hosting comments at all.
Totally Agree.
Good comment Daniel.
There is NO ONE more Hate Filled, Greedy, lying, cheating and hypocrite than a Democrat! Democrats now consider tech, wall street and government including the DOJ as their personal piggy banks and Enforcers.
Definition of Fascism fits Today’s Democrats
In simplest terms, fascism refers to a specific way of organizing a society: under fascism, a government ruled by a dictator controls the lives of the people in that society, and allows no dissent or disagreement.
We need a new topic:
What is a Bitcoin?
What is inside a Bitcoin?
Gold in there?
Electricity in there?
Bits of what?
No it has no value. There is no underlying company product like motor tires which the coin owns.
Don’t be dumb. Bitcoin will go to hell.
“If the Senate truly wanted content neutrality, … It would condition the continued immunity protection under Section 230 of the Communications Decency Act on removing “content modification” and amplification programs.”
That’s quite a proposal.
What would companies choose: 230 protection with no algorithmic amplification (keeping in mind that they use amplification to promote further engagement with their platform) or no 230 protection with continued use of algorithmic amplification (keeping in mind that this would very likely result in a lot more censorship on the company’s part, since they wouldn’t have the 230 protection)?
Turley just throws this out there and doesn’t engage at all with the details of what he’s proposing.
Brookings is right that “algorithms contribute to hate speech and other information disorder on social media.” So what IS the best way to address this?
“to slow down how misinformation or other harmful content spreads on social media.”
They have a goal.
It uses terms that have no definition.
Do you not know how to use a dictionary?
Here’s an example of relevant definitions from the Oxford English Dictionary:
misinformation, n.
Origin: Formed within English, by derivation. Etymons: mis- prefix1, information n.
Etymology: < mis- prefix1 + information n., after misinform v.
1. The action of misinforming someone; the condition of being misinformed.
[early appearance: 1587]
2. Wrong or misleading information.
3. An instance of misinformation (sense 1); an item of misinformation (sense 2).
misinform v.
a. transitive. To give wrong or misleading information to (a person). Frequently in passive.
[early appearance: 1393]
b. intransitive. To impart wrong or misleading information; to be misinformative. Now rare.
For example, if a source says that Trump won the 2020 election, that’s misinformation.
“Do you not know how to use a dictionary?”
The only definition that counts is the definition in the law.
Masks do little to reduce the spread of airborne viruses.
Natural immunity to covid is =, > than M rna vaccinations
6 feet separation reduces the spread of covid
Just three fact statements that are labeled misinformation
If the law uses an everyday term and doesn’t redefine it in some narrower legal sense, then its used with its everyday meaning.
Good masks that are used properly do help to reduce transmission.
Natural immunity is not better than immunity from vaccination.
Physical separation does help reduce spread.
https://ijr.com/cdc-study-natural-immunity-significantly-protection-covid/. Some studies say yes, others say no. Others say yes on Delta, no on Omricon. Don’t be guilty if spreading misinformation (Vaxed and boosted here)
I’m not guilty of spreading misinformation, and you should read the study itself instead of relying on a reporter’s summary with a misleading headline.
The study authors note that in May–November 2021, “Before Delta became the predominant variant in June, case rates were higher among persons who survived a previous infection than persons who were vaccinated alone. By early October, persons who survived a previous infection had lower case rates than persons who were vaccinated alone,” but my claim was never limited to that narrow Oct-Nov time range or to those who survived infection. Covid deaths are clearly relevant to assessing the relative value of vaccination vs. natural immunity. The study concluded that “vaccination remains the safest strategy for averting future SARS-CoV-2 infections, hospitalizations, long-term sequelae, and death.”
How do you believe anything? The CDC has admitted they have withheld massive amounts of data. If they withheld data, there is little doubt they doctored it to support their mandates.
Is the Barrington Declaration misinformation? Social media banned it as such.
Wrong Re. natural immunity, which does outperform vaccine immunity. The problem is the virus’ high death rate; the death rate is lower for vaccinated persons so overall mortality is less for the vaccinated. But technically, those with natural immunity definitely have slightly greater health outcomes than those vaccinated who never got the virus.
Does the vaccination have a lower death rate for those below 30, than the vaccine? Some recent reporting creates grave questions.
Wrong or misleading information.
Who decides? President Trump? Or are to have a ministry of truth?
“It uses terms that have no definition.”
Well, to be fair, they do have “definitions” for those terms:
“misinformation” = ideas we disagree with
“harmful content” = ideas that make us look foolish and that keep us from getting elected
Even Ulysses would have have walked away from this Trojan Horse. At least the Greeks had some honor, more or less. The Republicans should burn this horse before it gets through the gates of the senate. The Republicans always have some soft headed simpleton like Ephialtes / Lummis to help the Democrats. Of course that story is at Thermopylae and not Troy. Maybe we should send a picture of Benedict Arnold to Lummins’ office instead. Pictographs are much easier to understand.
Even better ii you, Professor, launch a 1st amendment challenge in testimony before the senate or in court if it gets passed.
Misinformation is the next hate speech
As I have often said, Who determines what is Misinformation or Disinformation? It has been made crystal clear that the deployed information by the FDA/CDC and the Fauci Lunatics was in fact Misinformation and Disinformation. Additionally, the information provided by the FBI/DOJ and Mueller Special Counsel about the Russia collusion by the President Mean Tweets campaign was in fact a deception and Disinformation campaign orchestrated by the Intel community and the Clinton Campaign staff and contractors. Clearly, any attempt by the “Government” to control content and speech is nefarious and with an intent to move to a Communist all information comes from Government approved sources. Exactly like the twins in “Good Morning Vietnam” that approved what was put on the radio.
As soon as I saw Amy Klobuchar was behind the proposal, my antenna went up.
There is an old saying in Minnesota: “60% of Minnesotans like Amy; the rest know her.”
How do hacks like her (worse, authoritarians like her – see her stints as a prosecutor) get elected?
In the same way that hacks like Madison Cawthorn, Ted Cruz, Marjorie Taylor Greene and Lauren Boebert get elected.
Well we have to have our hacks to cancel out your hacks.
I heard some misinformation at the airport. Two Russians were talking to an Australian guy and told him that Putin and Trump were queer and had sex together.
Beware the Law of Unintended Consequences.
You meant, beware the Intended Consequence of people voting Democrat?