Senator Klobuchar's Next Unconstitutional Speech Control Bill: The NUDGE Act

from the please-stop dept

Is there a contest in the Senate to see who can propose the highest number of unconstitutional bills? You might think that the leader in any such contest would have to be a crazed populist like a Josh Hawley or a Ted Cruz, but it seems like Senator Amy Klobuchar is giving them a run for the money. Last summer, she released a bill to try to remove Section 230 for "medical misinformation," as declared by the Ministry of Speech Director of Health and Human Services. We already explained the very, very serious constitutional problems with such a bill.

And now she's back with a new bill, the NUDGE Act (Nudging Users to Drive Good Experiences on Social Media) which she announced by claiming it would "hold platforms accountable" for the amplification of "harmful content." You might already sense the 1st Amendment problems with that statement, but the actual text of the bill is worse.

In some ways, it's an improvement on the health misinformation bill, in that she's finally realized that for any bill to pass 1st Amendment scrutiny it needs to be "content neutral." But... it's not. It claims that it's taking a "nudge" approach -- popularized from Cass Sunstein and Richard Thaler's 2008 book of that name. But the whole point of "nudges" in that book is about small tweaks to programs that get people to make better decisions, not threats of government enforcement and regulations (which is what Klobuchar's bill does).

The bill starts out fine... ordering a study on "content-agnostic interventions" to be done by the National Science Foundation (NSF) and the National Academies of Sciences, Engineering, and Medicine (NASEM) to look for such content-agnostic interventions that would "reduce the harms of algorithmic amplification and social media addiction." And, sure, more research from independent and trusted parties sounds good -- and the NSF and NASEM generally are pretty credible and trustworthy. Perhaps they can turn up something useful, though historically, we've seen that academics and government bureaucrats who have no experience with how content moderation actually works, tend to come up with some ridiculously silly ideas for how to "fix" content moderation.

But, unfortunately, the bill goes beyond just the studies. Once the "initial study report" has been delivered, the bill then tries to force social media companies to adopt its recommendations, whether or not they'll work, or whether or not they're realistic. And... that is the unconstitutional part. You can call it "content-agnostic" all you want, but as soon as you're telling companies how they have to handle some aspect of the editorial discretion/content moderation on their sites, that's a 1st Amendment issue. A big one.

The bill requires the Commission it creates to start a rulemaking process which would release regulations for social media websites. The Commission would determine "how covered platforms should be grouped together" (?!?), then "determine which content-agnostic interventions identified in such report shall be applicable to each group of covered platforms..." and then (play the ominous music) "require each covered platform to implement and measure the impact of such content-agnostic interventions..."

And here's where anyone with even a tiny bit of trust and safety/content moderation experiences throws back their heads and laughs a hearty laugh.

Content moderation is an ever-evolving, constantly adapting and changing monster, and no matter what "interventions" you put in place, you know that you're immediately going to run into false positives and false negatives, and more edge cases than you can possibly imagine. You can't ask a bunch of bureaucrats to magically come up with the interventions that work. The people who are working on this stuff all day, every day are already trying out all sorts of ideas to improve their sites, and through constant experimentation, and adaptation, they keep gradually improving -- but it's a never-ending impossible task, and the idea that (1) government bureaucrats will magically get it right where companies have failed, and (2) a single mandate will work is beyond laughable (even excluding the constitutional concerns).

Also, the setup here seems totally disconnected to the realities of running a website. "Covered platforms" will be given 60 days to submit a plan to the Commission as to how they'll implement the mandated interventions, and the Commission will approve or disapprove of the plan. And any changes to the plan need to also be approved by the Commission. Some trust and safety teams make multiple changes to rules all the time. Imagine having to submit every such adjustment to a government Commission? This is the worst of the worst kind of government nonsense.

If companies fail to implement the plans, as the Commission likes, then the bill says the websites will be considered to have committed "unfair or deceptive acts or practices" enabling the FTC to go after them with potential fines.

The bill has other problems, but seems to just be based on a bunch of tropes and myths. It would only apply to sites that have 20 million active users (why that many? who the hell knows?), despite the fact that over and over again we've seen that laws that target companies by size create very weird and problematic side effects. The bill is nonsense, written by people who don't seem to understand how social media, content moderation, or the 1st Amendment work.

And, bizarrely, the bill might actually have some support because (astoundingly?!?) it has bipartisan backing. While it's a Klobuchar bill, it was introduced with Senator Cynthia Lummis from across the aisle. Lummis has, in the past, whined about social media companies "censoring" content she wanted to see (about Bitcoin?!?), but also was a co-sponsor of a bill that would require social media companies to disclose when the government pressures them to remove content, which is kinda funny because that's what this bill she's sponsoring would do.

I'm all for doing more credible research, so that's great. But the rest of this bill is just unconstitutional, unrealistic nonsense. Do better, Senator.

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Filed Under: 1st amendment, amplification, amy klobuchar, content moderation, cynthia lummis, harmful content, interventions, mandates, nudge act, social media, studies


Reader Comments

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  • identicon
    Anonymous Coward, 16 Feb 2022 @ 10:55am

    Hmm...

    And Youtube's CEO came out and urged governments to crack down on bad speech recently as well.

    https://www.youtube.com/watch?v=EelzU4gnEMY

    “Our recommendation, if governments want to have more control over online speech is to pass laws to have that be very cleanly and clearly defined so that we can implement it,” [Youtube CEO] Wojcicki said.

    But, "muh private platform" right?

    link to this | view in chronology ]

  • icon
    Jojo (profile), 16 Feb 2022 @ 11:00am

    Jeez these anagrams are getting out of control. What’s next? The “WINK, WINK. NUDGE, NUDGE.” Act?

    link to this | view in chronology ]

  • identicon
    benjamin, 16 Feb 2022 @ 11:02am

    what will happens to the internet if this passes

    ok what will happens to the internet is this law passes ?

    link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 16 Feb 2022 @ 11:03am

    They swore to uphold the Constitution... isn't it time to start punishing them when they outright attack it?

    link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    BoKnows, 16 Feb 2022 @ 11:04am

    Uh

    You have no first amendment right to make posts on social media websites.

    I expect better from the content on this website. I don't know why, though. This is just pathetic.

    link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      BoKnows, 16 Feb 2022 @ 11:08am

      Re: Uh

      Nevermind. I just found out that this author is a shill for Google.

      link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Feb 2022 @ 11:11am

      Right back at ya, friendo.

      The First Amendment says that the government has no right to decide on behalf of private companies whether you can make posts on the latters' websites.

      I expect better from the content in this comments section. I don't know why, though. This is just pathetic.

      link to this | view in chronology ]

      • identicon
        Anonymous Coward, 16 Feb 2022 @ 11:14am

        Re: Right back at ya, friendo.

        Oops, I suppose I should have added a tag to indicate that I'm only teasing. No hard feelings, right? :P

        link to this | view in chronology ]

    • icon
      Strawb (profile), 16 Feb 2022 @ 11:28am

      Re: Uh

      Private companies have a first amendment right to associate with whatever speech or persons they wish. Government telling them to associate(or not associate) with certain speech or persons violates that right.

      Being a smartass is only allowed if you're right.

      link to this | view in chronology ]

    • icon
      Cdaragorn (profile), 16 Feb 2022 @ 11:50am

      Re: Uh

      Great strawman you got there. You seem to be confused who these bills are about. It's not you.

      link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 16 Feb 2022 @ 11:56am

      Sir, I’m afraid you can’t leave that much straw on the floor without being a fire hazard.

      link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 16 Feb 2022 @ 1:41pm

      Re: Uh

      You have no first amendment right to make posts on social media websites.

      That is correct. But this bill is not about that.

      A website, however, DOES have a 1st Amendment right to determine how to moderate its own content. And that's where this bill creates a problem, by forcing websites to moderate how the government sees fit, rather than how they see fit.

      link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    icon
    Koby (profile), 16 Feb 2022 @ 11:37am

    Pass The Buck

    Once the "initial study report" has been delivered, the bill then tries to force social media companies to adopt its recommendations, whether or not they'll work, or whether or not they're realistic.

    We've seen this dereliction of duty before, where members of congress are unwilling to stake out a position and write it into law. Instead, they try to fob off the answer to the executive branch, and have them try to spell out the details instead. The good news is that, at least for some industries that I follow, when the rules inally get written, they're challenged in court and often overruled.

    But this technique has been trendy, and at the end of the day the politician gets to shrug their shoulders and say "Well, we tried to do something."

    link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Feb 2022 @ 11:40am

      Re: Pass The Buck

      Bravely bold Sir Koby
      Rode forth from the Internet.
      He was not afraid to die,
      Oh brave Sir Koby.
      He was not at all afraid
      To be killed in nasty ways.
      Brave, brave, brave, brave Sir Koby.
      He was not in the least bit scared

      link to this | view in chronology ]

    • icon
      Jojo (profile), 16 Feb 2022 @ 12:07pm

      Re: Pass The Buck

      Koby, if you’re just here to shit, there’s a bathroom nearby, please don’t shit on the tables.

      link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Feb 2022 @ 1:31pm

    When I first read "Nudging Users to Drive Good Experiences on Social Media," I thought that it was about sending every household a pack of MDMA pills...

    link to this | view in chronology ]

  • icon
    ECA (profile), 16 Feb 2022 @ 4:09pm

    And in history today and yesterday.

    Where the F' do you think we learned all the dirty words as kids and Teens?
    SCHOOL.
    NOT the NET, SCHOOL. And the Full Unabridged Dictionary thats about 1 Foot thick.(I looked them up when I was younger)

    Explicative, Explicative delete.
    (interesting, Google didnt know how to spell Explicative)

    link to this | view in chronology ]

  • icon
    Woadan (profile), 16 Feb 2022 @ 6:55pm

    Screen Doors

    We may as well start building submarines with screen doors, or put picture windows on outhouses. It will have the same result.

    link to this | view in chronology ]

  • icon
    Draph91 (profile), 17 Feb 2022 @ 6:55am

    *angrish*

    I'm convinced this is a backup plan, if EARN IT doesn't pass

    Does anyone else think that?

    link to this | view in chronology ]


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