Senator Amy Klobuchar (D-MN), Chairwoman on the Judiciary Subcommittee on Competition Policy, Antitrust, and Consumer Rights, introduced legislation that would strip Section 230 liability protections from online companies that “promote” health misinformation through algorithms or similar software functionality during a public health emergency. The Health Misinformation Act of 2021 would give broad authority to the Secretary of Health and Human Services (HHS), a political appointee, to determine what constitutes “health misinformation.” This ill-advised piece of legislation, which would put private online platforms under the sword if they fail to comply with the federal government’s directions, should raise alarms with all taxpayers.
The internet and the speech that proliferates online has immense pro-democracy potential. That is why it can lead to heavy-handed action from authoritarian governments looking to suppress dissenting views. Recently in Cuba, in the wake of protests in the country, the Cuban government restricted access to the internet for its citizens. In response, some lawmakers have sought creative ways to aid pro-freedom Cuban protestors. Other authoritarian regimes like China and North Korea have similarly sought to restrict access to the internet and control the content their citizens can view. Of course, the United States is not in the same league as these countries. However, Americans should always remain wary of what steps our government may take given the proper tools, power, and motivation.
Section 230 of the Communications Decency Act prevents online intermediaries from being treated as the speaker of third-party content and thus are not held liable for speech that is hosted on their platforms. Even if these protections were gutted, private online companies would still retain their First Amendment rights. However, the greatest benefit of Section 230 is avoiding costly legal battles. Rather than spur online companies to take down “misinformation,” companies would likely do everything possible to avoid six-figure lawsuits. From TikTok to Twitter to YouTube, online companies would have the momentuntal and probably impossible task of scouring every piece of content posted to their site or risk facing large lawsuits. That would lead to a chilling effect on free speech. Unlike other technology-related legislation, this bill does not include size thresholds. Due to the sheer number of user-generated content, many online platforms use algorithms to prioritize content that a user is more likely to want to see. Any platform using algorithms or a functional equivalent, a standard that applies to far more companies than just “Big Tech,” would be burdened by this poorly constructed legislation.
The most troubling part of the legislation is the wide leeway it gives to the HHS Secretary and other heads of federal agencies to decide what constitutes “health misinformation.” While misinformation is an issue, a major problem during the spread of the novel coronavirus has been simply a lack of information. Countries, companies, and families were forced to adapt to changing mandates and rules as new information on COVID-19 became available. For example, former US Surgeon General Jerome Adams, former Director of the Centers for Disease Control and Prevention (CDC) Dr. Robert Redfield, and Dr. Anthony Fauci all made various public comments either discouraging or hedging against the need for widespread mask use. Of course, masks became an important tool to slow the spread of the virus, and these individuals all have since adapted their views to the latest science. Similarly, Facebook has recently ended its ban on posts asserting COVID-19 was man-made or manufactured. These examples illustrate how difficult it can be for scientists, let alone political appointees, to decide what constitutes “misinformation” during a public health emergency.
Senator Klobuchar’s misinformation legislation is also remarkably shortsighted. While Democrats may feel comfortable handing control to political appointees while they control all branches of government, that situation is sure to change. In fact, just last year then-Senate Minority Leader Chuck Schumer called on former HHS Secretary Alex Azar, appointed by then-President Trump, to resign. The Chamber of Progress, a left-leaning technology trade group, argues, “when President Ron DeSantis’ HHS Secretary deems pro-choice and transgender speech ‘misinformation,’ Democrats would regret this.” Republicans don’t have to look far to see why this legislation is harmful for their values as well. Current HHS Secretary Xavier Becerra was among President Biden’s most contentious nominees and was narrowly confirmed 50-49 by the Senate. It should also be noted that there is no requirement that the HHS Secretary have a medical background or relevant health care experience.
Whether it's Republicans or Democrats, anointing the federal government as the speech police is not in the best interest of taxpayers nor would it likely solve underlying problems proponents want to address. The Delta variant of COVID-19 and the return of mask mandates in some areas of the country has rightfully caused concerns. Robust outreach to encourage vaccinations, like the efforts Senate Minority Leader Mitch McConnell (R-KY) has led, is important work that can help ensure our economy and lives are not shut down again. The coronavirus has become a highly politicized and polarized topic. It’s incredibly difficult to see how political appointees meddling with free speech would improve the situation. This legislation from Senator Klobuchar is far from sound policy.