• by Wendy Davis , Staff Writer @wendyndavis, July 22, 2021

President Joe Biden recently accused Facebook of “killing people” by allowing false information about the COVID-19 vaccines to spread on the platform.

Now, Senator Amy Klobuchar (D-Minnesota) has introduced legislation aimed at curbing online misinformation about COVID-19.

Her “Health Misinformation Act” would strip websites of their legal protections for promoting users' posts that contain incorrect information about COVID-19. Specifically, the measure, co-sponsored by Senator Ben Ray Luján (D-New Mexico), carves out an exception to Section 230 of the Communications Decency Act for users' posts with false health information, when those posts are algorithmically promoted during a national emergency.

The measure would task the Secretary of the Department of Health and Human Services with determining what qualifies as health misinformation.

Section 230 currently protects websites from liability over user-generated content. Without that immunity, sites like Facebook, Twitter and Yelp could face an endless barrage of lawsuits from people who say they were defamed by other users.

But even if Section 230 didn't exist, websites -- along with newspaper publishers and television broadcasters -- would likely defeat lawsuits over false health information. That's because the First Amendment broadly protects the right to publish questionable commentaries regarding health issues.

There are some exceptions, but they are rare, according to Santa Clara University law professor Eric Goldman.

“For the most part, the kind of health information the bill is targeting is fully protected by the First Amendment,” he says.

But he adds that there may be outlier situations that lend themselves to lawsuits. For instance, the publisher of “The Encyclopedia of Mushrooms” was successfully sued by people who became sick after relying on incorrect information in the book.

It's worth noting that last year, Fox News quickly defeated claims that it violated a Washington state consumer protection law by allegedly spreading false information about the COVID-19 pandemic.

In that case, the nonprofit Washington League for Increased Transparency and Ethics claimed that comments made on March 9 by Fox personalities Sean Hannity and Trish Regan deceived people about the pandemic.

King County Superior Court Judge Brian McDonald ruled that Fox was protected by the First Amendment. He specifically pointed to a 2012 Supreme Court decision which held that the First Amendment prohibits content-based restrictions on speech, unless it falls into certain historic categories like perjury or defamation.

For its part, Facebook argued last week that it has taken action to remove or flag many posts with incorrect information regarding the pandemic. The company also says that 85% of its U.S. users either have been vaccinated, or want the vaccine.

Biden also softened his anti-Facebook rhetoric. On Monday, he said Facebook isn't actually killing people, but should do more to prevent misinformation about the vaccines from circulating on the platform.