§ 230 and the Preserving Constitutionally Protected Speech Act
You can see the PDF of my testimony (and the other witnesses’ testimony as well), but I thought I’d also blog the text; I commented separately on five different proposals, so I thought I’d break this down accordingly. As I noted, my plan was mostly to offer an evenhanded analysis of these proposals, focusing (in the interests of brevity) on possible nonobvious effects. I also included my personal views on some of the proposals, but I will try to keep them separate from the objective analysis.
[II.] Preserving Constitutionally Protected Speech Act
This bill contains several different provisions.
[A.] Enabling State Civil Rights Laws That Ban Political Discrimination
The bill would change § 230(c)(2) to provide (in proposed new § 230A(a)(2)) that,
No provider of an interactive computer service that is a covered company [basically, a large social media platform] shall be held liable on account of … any action voluntarily taken in good faith to restrict access to or availability of material
that is not constitutionally protected or that the provider has an objectively reasonable belief is obscene, lewd, lascivious, filthy, excessively violent, or harassing.
The current version of (c)(2), on the other hand, closes with:
that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.
To oversimplify, the bill would make clear that platforms have no federal immunity when they block constitutionally protected material that isn’t sexual, violent, or harassing. States could then, if they choose, limit platforms’ ability to remove posts and users based on the posts’ and users’ political ideas (or religious, scientific, and other ideas). The bill wouldn’t itself ban such political discrimination, but it would clearly allow states to do so.
Whether such bans on political discrimination by social media platforms are constitutional under the First Amendment, and whether they are a good idea, are difficult questions, which I canvass in a recent article. But the bill would make clear that § 230 doesn’t preclude such bans.
[B.] Requirement That Users “Knowingly and Willfully Select … Algorithm[s]” for Displaying Content
The bill would strip large platforms of immunity when they “utilize an algorithm to amplify, promote, or suggest content to a use
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