• by Wendy Davis , Staff Writer @wendyndavis, December 28, 2021

A state lawmaker in New York has joined the growing list of public officials to introduce legislation aimed at controlling how social media platforms handle users' posts.

As with numerous other recently proposed social-media laws, the bill, introduced by State Senator Brad Hoylman (D), raises obvious First Amendment concerns. If passed, it would almost certainly be held unconstitutional.

The measure specifically would prohibit social media platforms from promoting certain objectionable content -- including posts that contain “a false statement of fact or fraudulent medical theory that is likely to endanger the safety or health of the public.”

The problem with this type of proposal is that many debatably false statements about health and medicine -- including statements about vaccine efficacy and side effects, or unproven treatments for COVID-19 -- are protected by the First Amendment.

For that matter, false statements in general are protected by the First Amendment.

“Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth,” Supreme Court Justice Anthony Kennedy wrote in a 2012 decision, referring to George Orwell's “1984.” The decision in that case invalidated a law that would have made it a crime for people to lie about their military service.

On its face, Hoylman's statute targets “promoting” speech, as opposed to merely hosting it, but that distinction won't solve the bill's First Amendment problems, according to Santa Clara University law professor Eric Goldman, an expert in online content issues.

The difference between hosting and amplifying speech is “incoherent,” he says.

“Both are part of any 'publication' process that's protected by the constitution,” he adds. 

Hoylman isn't the only one attempting to control how social media companies handle users' speech. Earlier this year, Sen. Amy Klobuchar (D-Minnesota) introduced the “Health Misinformation Act,” which aims to discourage social media companies from promoting posts with false information about COVID-19. That measure would carve 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. 

Meanwhile, Republicans in Florida and Texas managed to pass laws that appear to be in direct conflict with Hoylman's proposal: Measures in those two states forbid social media companies from suppressing some types of speech.

The Texas law -- which was blocked by a federal judge earlier this month -- would have prohibited large platforms like Twitter, Facebook and YouTube from suppressing posts based on the viewpoint expressed.

That law (HB 20) would have let companies remove illegal content, but required them to host a large variety of objectionable speech. State lawmakers rejected an amendment that would have explicitly allowed the companies to remove vaccine misinformation, as well as an amendment that would have explicitly allowed companies to take down posts denying the Holocaust.

The Florida bill -- also blocked by a federal judge -- would have subjected social media companies to fines of $250,000 per day for “deplatforming” candidates for statewide office, and $25,000 per day for other offices. (The bill defines deplatforming as banning a user for more than 14 days, or permanently deleting the users' account.)

That law also would have prohibited social media companies from “censoring,” “deplatforming” or “shadow banning” journalistic enterprises, based on content.

State officials in Florida and Texas recently asked appellate judges to reinstate those laws. Those requests are currently pending.