North Carolina State Senators Read Section 230 Completely Backwards, Introduces Laughably Confused Bill In Response
from the that's-not-how-any-of-this-works dept
What is it with state legislators not having anyone around them who can explain to them how Section 230 works, leading them to push incredibly stupid state bills? We've written about both Republicans and Democrats pushing bills to modify Section 230, ignoring how 230 likely pre-empts those attempts (if the 1st Amendment doesn't already).
Many of these bills misunderstand Section 230, the 1st Amendment, or how content moderation works. Though, many of them misunderstand the law in fairly predictable ways. Last week three state Senators in North Carolina -- Senators Ted Alexander, Kevin Corbin, and Todd Johnson -- surprised me. Oh no, it's not that they were some state elected officials who actually bothered to understand Section 230, because trust me, they did not. But they surprised me in that they misread Section 230 in a novel and completely ridiculous way that I'd not seen before. It's so bad that it causes me to question the great state of North Carolina: how do you elect people this bad?
The bill has all the trappings of many of the dumb Republican state 230 bills that think (incorrectly) that they can compel websites to host speech (something that is not allowed under the 1st Amendment). But this one takes it up a level. The bill is officially entitled: An Act to Enact the Stop Social Media Censorship Act to Prohibit Certain Social Media Websites from Censoring Certain Political or Religious Speech. That is already quite a mouthful. First it's act to enable another act, which says that it will stop to prohibit? I mean, c'mon guys.
But here's where things get just... wrong. The authors of the bill claim (wildly incorrectly) that Section 230 has a "state law exemption" that allows them to "cure abuses of Section 230." Here's what the bill says:
Whereas, repealing section 230 of the Communications Decency Act at the federal level is unnecessary because it already includes a state law exemption, and the Stop Social Media Censorship Act was crafted to fall squarely in the state law exemption of section 230 to cure abuses of section 230 to protect the consumers of this State
Except, that's wrong. I mean, it's literally the exact opposite of what Section 230 actually says. Section 230(e)(3) does not "exempt" states, it pre-empts them and says that no state can pass a law that ignores 230. Honestly, it looks like whoever drafted this bill read only the first half of the first sentence of (e)(3) and thought they'd found the loophole. Here's what (e)(3) actually says:
Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.
That is not saying that 230 exempts state law. It's saying that it does not allow state laws that are inconsistent with 230. And, this is not exactly a secret. I mean, beyond saying it pretty damn clearly, there are tons of courts that have made this point over and over again over the years. State laws are pre-empted by 230, and they can't pass a law that gets around it. So, not only did the authors of this bill not even read the full sentence they seem to be pointing to, they did apparently no research at all, nor spoke to any Section 230 expert who could have told them that the law does not allow this.
The rest of the bill is the usual performative nonsense, mistakenly claiming that social media companies practiced "bait-and-switch" because they "market themselves as free, fair and open to all ideas" but that because they've moderated fraudsters, liars, and disinfo peddlers, that somehow makes their marketing claims "false advertising and deceptive trade practices." This is all, of course, utter nonsense. These websites have every right to moderate as they see fit both under the 1st Amendment and under their own terms of service, which everyone agrees to when they sign up.
The bill specifically tries to create a civil right of action for people who have been moderated to bring claims of deceptive trade practices, false advertising, breach of contract, bad faith, unfair dealing, fraudulent inducement, and, my personal favorite: "The stifling of political and religious speech in the modern day digital public square cultivated by social media websites that have achieved critical mass through fraud." Another mouthful of utter nonsense.
The bill does say that some speech is okay for a website to moderate -- including calls for "immediate acts of violence" (distant future violence is apparently okay). It also says that sites can take down impersonation accounts or bullying of minors (bullying adults is apparently fine as well). It also says, explicitly, that social media companies cannot take down content for hate speech. Like, literally, these three ignorant, foolish senators are insisting that websites be forced to host hate speech. Explicitly:
A social media website may not utilize a user's alleged hate speech as a basis for justification or as a defense to an action under this section
That's kind of impressive. I mean, normally when idiot elected officials push bills like this, they act surprised when people point out that their bill will encourage hate speech. But here, Senators Alexander, Corbin, and Johnson are literally putting it on front street that social media companies must host hate speech and bullying (as long as it's not a minor). Fuck these guys (and under their own bill, they should be fine with such insults).
The bill also targets the other mythical bogeyman of ignorant Republicans: "shadowbanning." It would not be allowed under this law.
Even without Section (e)(3), which these foolish, foolish elected officials misread, this bill is so incredibly in violation of the 1st Amendment that it would never actually become operational. But the level of sheer stupidity built into this bill raises serious questions about how these complete and utter fools ever got elected to anything more powerful than the local dog catcher.
Filed Under: 1st amendment, content moderation, kevin corbin, north carolina, pre-emption, section 230, social media, ted alexander, todd johnson
