In a grandstanding attempt to combat ‘Public Misinformation’, the genius team of Klobuchar and Lujan, Senators for… something, have put together a bill that would hold social media companies for anyone on their platforms who posts ‘misinformation’ during a declared public health emergency.
To understand how bad of an idea this is, remember that the CDC flip flopped on mask mandates and efficacy. Therefore both mask-yes and mask-no would qualify at one point or another as ‘Public Misinformation’ and the entity that would have been liable would have been the Social Media Company hosting the post. If someone reposted and old post contrasting it to a new post, it would be the fault of the social media company for whichever one was currently false.
Reporting from TechDirt,
from the stop-this-nonsense dept
On Wednesday, Senator Amy Klobuchar promised to introduce a bill that would somehow hold Facebook liable for medical misinformation. As we wrote in the post about her claims, that doesn’t explain how there would be any legitimate underlying cause of action, because nearly all such medical misinformation is still protected by the 1st Amendment.
Yesterday Klobuchar, along with Senator Ben Ray Lujan, introduced their bill: the Health Misinformation Act of 2021. To say it’s unconstitutional would be giving it too much credit. To say that it wouldn’t even remotely do anything useful would be to state the obvious. To say that it’s a grandstanding piece of absolute nonsense would be about the best thing I could think of. It’s garbage in so many ways.
The actual functioning of the bill would be to add an exception to Section 230’s protections, saying that they no longer apply — if it’s in the midst of a health crisis — for medical misinformation. It would add the following “EXCEPTION” to Section 230:
“A provider of an interactive computer service shall be treated as the publisher or speaker of health misinformation that is created or developed through the interactive computer service during a covered period if the provider promotes that health misinformation through an algorithm used by the provider (or similar software functionality), except that this subparagraph shall not apply if that promotion occurs through a neutral mechanism, such as through the use of chronological functionality”
And, this law would only be in effect during a public health emergency, as declared by the Secretary of Health & Human Services. The law would also require the Secretary of Health & Human Services to “issue guidance regarding what constitutes health misinformation.” That last bit should make you grimace, because that’s a hugely problematic thing for the 1st Amendment. Having the government define what is and what is not “health misinformation” cannot possibly pass 1st Amendment scrutiny by a court.
It’s also incredibly dumb. First of all, in a “public health emergency” like we’re currently going through, what is and what is not “health misinformation” is not always clear, and involves constantly changing information. Remember, we went through this with the whole “wearing masks” thing at the very beginning of the pandemic. Then, you had the WHO and CDC advise against wearing masks. Under this bill, you could have had the HHS boss claim that anyone promoting mask wearing was engaging in health misinformation… and somehow try to make Facebook liable for it. Would that have been a good idea?