The Biden Administration Should Take the First Amendment as Seriously as Facebook’s Disinformation

Last week, the White House declared war on vaccine misinformation and Facebook’s moderation system. President Joe Biden said Facebook and other social networks were “killing people” by spreading false information about vaccines, though he later toned down the attack. Facebook sharply contested the accusation and promoted its vaccine efforts. And yesterday, the Biden government hit back with a disturbing – and needless – promise that it was “revising” internet law in response to misinformation.

I want to be clear: The White House vaccine push is a good thing. US COVID-19 cases are abruptly increasing as the Delta strain of the virus spreads, less than half of all Americans are fully vaccinated, and almost all recent US COVID-19 deaths have been among unvaccinated people. A significant number of Americans report that they believe in theories such as “the US government is using the COVID-19 vaccine to microchip the population,” an idea that is literally made up and made up. wouldn’t even work. Helping companies like Facebook spread these theories even if they also promote trustworthy content. And elected officials can urge companies to stop doing something harmful, even if it’s legal.

But the White House hasn’t made the latter part of that equation clear. Instead, it offers blurred lines between reasonable guidelines and unreasonable government action by condoning the idea that Facebook should be legally “responsible” for false claims.

In an interview with MSNBC over misinformation about vaccines, White House communications director Kate Bedingfield responded to a question about whether Biden would amend Section 230 to make companies “responsible for publishing that information and then open to lawsuits.” Bedingfield replied that “we are reviewing that, and they should definitely be held accountable.”

The idea that Section 230 is stopping a crackdown on misinformation is… well, misinformation. (And it’s not Biden’s first time either.) Section 230 protects against lawsuits involving illegal content. With limited exceptions, the First Amendment allows people to lie and be wrong online. There is nothing for the Biden administration to “review” unless they believe one of three things:

  • Misinformation about vaccines falls under existing First Amendment exceptions, such as defamation or fraud, and Section 230 should no longer protect companies that host it. (Posts doing things like selling non-vaccine COVID-19 “cure” might fit that bill, but probably not. general false reports about vaccines.)
  • Disinformation about vaccines is so harmful that it should be made illegal and Facebook should be held liable for spreading it by users. (Congress could theoretically define and ban “misinformation,” but it would be an uphill battle to protect the First Amendment.)
  • People should be encouraged to punish Facebook for hosting bad but legal content by making it fight frivolous lawsuits that it will almost certainly win.

The White House can encourage the removal of false medical information without supporting the idea of ​​taking Facebook to court. As lawyer and writer Ken White (aka Popehat) noticed on TwitterBiden could have emphasized from the outset that Facebook has a First Amendment right to allow a lot of false information, even if he believes the site has a moral obligation to remove it.

Bedingfield could have easily made a similar point in her interview, even leaving the door open to change Section 230 in other ways — something like “we believe in holding Big Tech accountable and reviewing laws, including Section 230, but we also respect the right of platforms to moderate legal content as they see fit and hope they will use that power responsibly.”

And when it comes to most of the false information online — especially information about the coronavirus pandemic, where even good-faith medical advice and scientific consensus are constantly changing — the U.S. government must continue to respect the right to host that content. As Bedingfield noted later in the interview, it’s not like Facebook is making anti-vaccine posts from the start; major outlets like Fox News have: pushed against vaccination efforts. Suing people on Facebook for platforming them would be an indirect crackdown on the press and individuals, not just “Big Tech” regulations. At least one group has directly sued Fox News for its coverage of the coronavirus, and the case was thrown away.

While the protections of the First Amendment are not unlimited, trying to ban scientific misinformation would almost certainly backfire. By encouraging lawsuits over it, companies could pressure Facebook to remove stories of alleged pollution, dangerous products or other unflattering but disputed incidents. And “fake news” laws in other countries have become tools to silence legitimate protest.

The Biden administration making this clear would not silence any critic who believes all social media moderation is censorship. (Eventually, former President Donald Trump sued Facebook for voluntarily seeking policy advice from his own administration.) But it’s the right way to tackle a complicated problem — one that upholds the White House’s commitment to protecting the First Amendment along with the health of Americans.