Washington Post Runs Bizarrely Ignorant Opinion Piece Claiming Florida's Content Moderation Law Is Constitutional

from the do-you-do-any-fact-checking dept

Look, I get that the Opinion sections of major newspapers want to run a variety of opinions, and thus might do less fact checking than the news parts of the paper, but it still seems just bizarre that they let any ignorant fool post absolute nonsense with no attempt at providing facts or the reasons why the underlying assumptions the opinion piece is based on are just wrong. Henry Olsen is apparently a "conservative" columnist for the Post while also being involved in some think tank that has been whining about big tech and, bizarrely, apparently suggesting that God believes Republicans should stop Twitter from having rights or something. Anyway, Olsen's column claims that critics of Florida's social media bill "are wrong" and that's it's perfectly legit for a state government to tell a company how to handle speech on their websites.

As you'll recall, Florida just signed its bad bill into law, and it's already being challenged in court, where the law is almost certain to be thrown out as unconstitutional.

Olsen, though, is sure that the bill is perfectly fine and there are no constitutional problems with it at all. After reading the headline, I expected to see some legal citations or actual, you know, factual arguments. But... that's apparently not what the Washington Post gets out of Olsen. First, Olsen insists that even though the facts don't support the idea that there's anti-conservative bias in how social media is moderated, he can cherry pick two examples -- Donald Trump and James O'Keefe -- as proof that it must be true and that something needs to be done:

The Florida law is a response to conservatives’ belief that social media companies unfairly target their limitations on speech. One can dispute how much that is actually true, but high-profile acts such as many companies’ continued ban on former president Donald Trump and the removal of Project Veritas’s James O’Keefe from Twitter provide more than enough proof to justify the reaction.

Except that doesn't deal with the reason why either one was banned. Trump was banned for using the platform to incite violence -- something that lots and lots of people (not just conservatives) have been banned for. O'Keefe was banned because Twitter claimed he was artifically amplifying his tweets. Again, lots of people have been banned for the same thing, including some of Trump's loudest critics. There is no evidence that there is bias in either of those moderation choices. Even more to the point, neither was banned for their "conservative" views. Both were banned for violating long-standing Twitter policies.

So, that's already a weak start to the article, but apparently that's the best Olsen can do. Because then he tries to dig into why there's no violation of the 1st Amendment here, and it seems to be... because Olsen doesn't think it's a big deal.

The question, then, is whether Florida’s requirements would help rather than hinder free expression of sensitive political issues, the core element the First Amendment seeks to protect.

Social media is an important, if not the most important, realm in which political debates are conducted today. As a result, access to social media is essential to any entity seeking to influence those debates. When a network denies someone access, it is significantly hampering the ability to successfully engage in political debate. That alone weighs heavily in favor of ensuring access is not unfairly or arbitrarily restricted or denied.

What? So, uh, the past two decades cable TV news has been one of the biggest influences on political debates and how they're conducted today, and I can't imagine Olsen would argue that the government should regulate that Fox News has to stop simping for Trump all the time, and would need to balance it out with some Biden love. Because that would be a very clear 1st Amendment problem.

Olsen then at least acknowledges West Virginia State Board of Education v. Barnette, which establishes clearly that the government cannot compel speech, but then says that forcing websites to host speech isn't really compelling speech. Again... this is based on... Olsen believing it's true. Not any actual legal argument or citation:

The question of compelled speech is also unconvincing. No reasonable viewer thinks that a TV station running an ad is endorsing the views it espouses. Similarly, a social media company that posts comments identified as coming from another party is clearly not making those statements itself. Allowing others to speak is not the same as forcing a company to endorse the speech.

What? That's not how any of this works. But all of this is based on Olsen just not understanding the regulations regarding broadcast TV and radio and assuming they magically apply elsewhere. This is the kind of thing you would think a newspaper like the Washington Post would have someone on hand to pull Olsen aside and explain to him that his very premise is mistaken. But, nope, Olsen knows that there are some regulations about political advertising on TV and radio, and assumes that it's easily applied elsewhere:

The federal government has long treated companies intrinsic to mass communication differently than other firms or individuals. Television and radio stations, for example, are required to run commercials from registered candidates for public office regardless of their content. They are also required to charge candidates lower ad rates than they charge commercial purchasers. Both requirements are justified as ways to ensure wide access to the entities that publicize ideas to a mass audience. The gain for political speech thus outweighs the burden placed on the communications companies.

But the reason for those regulations and what they apply to is kind of the key here. The FCC's regulations on this apply to broadcast stations. That is it applies to stations that have a license to use public spectrum. As such -- and only because they are using the public airwaves -- then the FCC can put these requirements on them. And, as the Supreme Court has made clear, these kinds of regulations are only constitutional because they're using public spectrum, via a license from the US government.

You can't just say -- as Olsen does -- that because there are regulations on broadcast TV and radio, that there's no problem with applying similar rules to totally private systems that don't rely on public spectrum. Somewhat hilariously, this is the identical ignorant argument that people on the opposite side of the political spectrum are making to try to apply the Fairness Doctrine to Fox News. It's unconstitutional in both cases.

And it's bizarre that no one at the Washington Post thought to suggest to Olsen that if he's going to point to regulations that are only constitutional because they're on public broadcast spectrum as his proof, he'll have to explain how the government can apply them to non-public spectrum, non-licensed networks, he might want to explain how that can actually work, when the Supreme Court has made it clear it does not. Though, amusingly, if his argument did work, it would also mean that the government could force Fox News to implement the Fairness Doctrine as well (perhaps using Olsen's own silly arguments) and I imagine he'd be pretty pissed off about that.

Anyway, Olsen's free to be wrong however he likes, but one would hope that the Washington Post wouldn't want to be in the business of publishing utter garbage, even if it is in the opinion section.

Filed Under: 1st amendment, content moderation, fcc, florida, henry olsen, public airwaves, regulations