Facebook is bad. Fixing it rashly will make things so much worse

The nicest thing you can say about the Health Misinformation Act, proposed in July by Democratic Sens. Amy Klobuchar and Ben Ray Luján, is that it means well. The internet has been a key accelerant of widespread myths, misunderstandings and lies related to COVID-19. Klobuchar and Luján’s bill would force online companies such as Facebook to crack down on false information during public health emergencies, or lose immunity from lawsuits if they don’t.

There’s only one problem: What is health misinformation? Scientific consensus has shifted dramatically during the pandemic. Klobuchar and Luján’s bill elides these complications. Instead they designate an all-knowing authority: Health misinformation, the bill said, is whatever the secretary of health and human services decides is health misinformation.

Have the senators forgotten that just last year we had a president who ridiculed face masks and peddled ultraviolet light as a miracle cure? Why would we choose to empower such a president’s Cabinet appointee as the arbiter of what’s true and false during a pandemic? And not just a pandemic — since the law defines a public health emergency so broadly, I wouldn’t put it past a scienceaverse future secretary from attempting to declare discussions about abortion, birth control, transgender health or whatever else as “misinformation.”

Klobuchar and Luján’s bill is one of many plans that attempt to curb the power of tech companies by altering Section 230 of the Communications Decency Act, the much-hated and much-misunderstood 1996 rule that affords websites broad immunity from liability for damage caused by their users. Proposals from Democratic lawmakers tend to call on tech companies to delete or demote false content in order to retain Section 230 immunity. Proposals from Republicans generally do the opposite, threatening to undo immunity if tech companies censor content “unfairly” or “in bad faith.”

Many legal experts argue that many Section 230 proposals, including the Klobuchar-Luján bill, likely violate the First Amendment, which makes it extremely difficult for Congress to dictate to private companies and their users what people can and can’t say online.

These plans may backfire. Rather than curbing the influence of Big Tech, altering Section 230 might only further cement Facebook and other tech giants’ hold over public discourse — because the giants might be the only companies with enough resources to operate under rules in which sites can be inundated with lawsuits over what their users post.

“There’s so much hatred for Facebook right now that anything is possible,” said Jeff Kosseff, a professor of cybersecurity law at the U.S. Naval Academy and the author of a book about Section 230, “The Twenty-Six Words That Created the Internet.”

Donald Trump and Joe Biden are emblematic of a widespread misunderstanding about Section 230 — the idea that it is the rule that gives tech companies leeway to moderate online discussions.

In fact, it is the First Amendment that grants technology companies that right. As Daphne Keller, director of the Program on Platform Regulation at Stanford’s Cyber Policy Center, has outlined, there are at least six ways that the Constitution limits Congress’ power to regulate online discourse.

Among these limits: Congress can’t require companies to ban constitutionally protected speech.

Not everyone agrees that the Constitution is incompatible with speech regulations for tech companies. Lawrence Lessig, a professor at Harvard Law School, told me that some content-neutral rules for online speech might survive constitutional scrutiny — for example, a rule that set an upper limit on the number of times a Facebook post could be reshared.

Kosseff, Lessig and Keller all agree on one idea — that before hastily enacting new online speech laws, Congress ought to appoint a kind of blue-ribbon investigative commission with the power to compel tech giants to provide much more information about how their platforms work.

I agree — but it’s better than moving haphazardly and making our problems much worse.