• by Wendy Davis  @wendyndavis, September 9, 2020

A trio of Republican senators have introduced legislation aimed at curbing online publishers' legal protections for users' posts.

The “Online Freedom and Viewpoint Diversity Act,” unveiled this week by Sens. Roger Wicker (Mississippi), Lindsey Graham (South Carolina) and Marsha Blackburn (Tennessee) would explicitly tie web companies' potential liability for users' speech to the companies' content moderation policies.

The measure would amend Section 230 of the Communications Decency Act, which currently immunizes web publishers from lawsuits over users' posts.

Section 230 has enabled much of the modern web, including social media platforms. Without that law, companies that allow people to post material that hasn't been vetted in advance would face the prospect of endless libel lawsuits.

The Republicans' proposed revision would deprive publishers of Section 230 immunity if they remove or restrict that content, absent an “objectively reasonable” belief that the material falls into specific categories of objectionable content.

Those categories would be limited to material that is “obscene, lewd, lascivious, filthy, excessively violent, harassing,” or “promoting self-harm, promoting terrorism, or unlawful.”

That change would mean that web companies that remove or restrict posts that violate the companies' terms of service -- but are nonetheless lawful -- could lose their immunity from lawsuits over users' speech.

For example, if the bill were to pass, Twitter could lose its protection from liability by enforcing its policies against “hateful content” -- which the company defines as “hate speech or advocacy” -- against people based on factors including race, national origin, gender identity, age, status as a veteran and status as an immigrant. (That type of speech and advocacy generally is lawful because of the First Amendment, which prohibits the government from prosecuting people solely over their views, or censoring material based on viewpoint.)

The effect of the bill would be "even more freedom to online trolls and malefactors -- at a time we actually would prefer that the online services do more to curb trolls and malefactors," Santa Clara University law professor Eric Goldman says.

Goldman, an internet law expert who has testified before Congress on Section 230, adds: “The bill is titled 'Online Freedom and Viewpoint Diversity Act,' but it would be more accurate to call it the 'Troll Freedom and Malefactor Diversity Act.'"

If the measure were to pass, web companies could also lose their protections for restricting access to propaganda or other material that could affect election integrity, according to Gaurav Laroia, senior policy counsel at the digital rights group Free Press.

Laroia adds that the bill is unconstitutional because it is not “viewpoint neutral.”

Instead, the measure would only permit social platforms to moderate specific categories of content, if the companies want to preserve their immunity.

“These are private companies,” he says. “They are afforded the ability to have a point of view.”

He adds that the bill “ties companies' hands in a way that's problematic under the First Amendment.”

The new proposal is one of several recent bills that could affect how online companies handle users' content.

In June, Sens. Brian Schatz (D-Hawaii) and John Thune (R-South Dakota) introduced legislation to require large platforms to remove content that courts have determined is illegal within 24 hours.

Earlier this year, President Trump directed the Commerce Department's National Telecommunications and Information Administration to petition the Federal Communications Commission for new rules that could link web companies' protections under Section 230 to content curation policies.

Trump issued that order after Twitter alerted users to dubious claims in two of his tweets.

The FCC is currently considering the White House's petition, but numerous legal experts say the agency lacks the authority to issue rules regarding Section 230, and three of the FCC's current five commissioners appear poised to dismiss the petition.