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GOP bill to protect speech on social media may gag officials

'I don't know what the bill thinks advocating means'

Rep. James Comer, R-Ky., sponsored the bill.
Rep. James Comer, R-Ky., sponsored the bill. (Tom Williams/CQ Roll Call file photo)

The bill that senior House Republicans introduced this month to prohibit federal officials from pressuring social media companies to censor speech has some experts worried it could hamstring government efforts to combat online content that’s widely perceived as harmful, including threats to public safety.

Republicans say the bill is designed to protect free speech on social media, but language directing officials not to use their authority or influence to “promote” or “advocate” the removal of content is raising questions about how those terms would be defined and whether public officials might themselves be muzzled. 

Federal warnings about online Russian disinformation, health problems that result from online behavior, and public safety could, given the reach of federal officials, be interpreted as pressuring the platforms to remove that content, technology policy experts say. 

“It’s kind of a half-baked messaging bill more than it is something that’s a carefully crafted piece of policy. There are so many ramifications of something that’s this broadly overreaching,” said Cheyenne Hunt, the Big Tech accountability advocate for the consumer advocacy group Public Citizen. 

James R. Comer, R-Ky., who leads the House Oversight and Accountability Committee, is the bill sponsor, reintroducing a measure he first offered in the last Congress. He said in a statement that it’s meant to stop the Biden administration from “bullying social media companies to censor certain views and news.” 

House Judiciary Chairman Jim Jordan, R-Ohio, and Energy and Commerce Chair Cathy McMorris Rodgers, R-Wash., are co-sponsors.

The support of three committee leaders may improve the bill’s chances of House passage, but it isn’t likely to see Senate action, never mind a presidential signature.

Comer’s statement referred to White House pressure on social media companies to address what the administration considered misinformation and disinformation about COVID-19 vaccines.

But legal experts said the bill language could be construed to prevent federal officials from even notifying social media companies about potentially harmful content. 

“I don’t know what the bill thinks advocating means,” said Jennifer Granick, a surveillance and cybersecurity lawyer for the American Civil Liberties Union’s Speech, Privacy and Technology Project. “All kinds of law enforcement agencies contact these companies in order to flag things — whether it’s posting people’s private information online, threats to public health, pornography where children can find it, voter suppression, you know, just all kinds of stuff. 

“It’s hard to imagine how the bill accomplishes what it appears to want to accomplish if it allows flagging but it doesn’t allow encouragement. It’s like, ‘Well, I’m just gonna flag it for you, but I’m not going to say please take this down.’ That doesn’t make sense.”

The bill would spell out exceptions for law enforcement activities directly related to preventing child pornography, human and drug trafficking and the leaking of classified national security information. 

But Hunt, at Public Citizen, said those exceptions don’t consider “the entire universe of harms to children or harms to people online.” 

‘Lawful but awful’

​​”We call it lawful but awful content, which is a really broad swath of things that nobody wants to see and many would argue should be illegal or is just as harmful,” she said. 

Hunt said the bill could prevent agencies from communicating with online platforms about moderating Russian disinformation designed to inflame partisan divisions in the United States, livestreams of violent acts and content that harms teenagers’ mental health. 

Mental health issues came into focus in September 2021, when The Wall Street Journal reported on internal research at Facebook showing that teenagers, especially girls, blamed Instagram for their anxiety and depression. Facebook and Instagram are both part of Meta Platforms Inc. The report said researchers found the mental health issues were often in relation to bullying or body image that, in some cases, led to eating disorders. 

Lawmakers from both parties have since increasingly scrutinized how social media products impact children. 

“T​his bill would make it so that government officials couldn’t in any way even really talk about this kind of issue and ask social media companies to be in any way more thoughtful or responsible with how they amplify certain kinds of speech or not,” Hunt said. 

Meta didn’t respond to a query seeking comment. Twitter doesn’t have a team to respond to reporters’ queries. 

A Republican aide for the Oversight and Accountability Committee said the measure would only prevent federal employees from pressuring social media companies to censor “lawful, constitutional” speech. 

“The bill does not in any shape or fashion prevent social media companies from implementing their own community guidelines,” the aide said. “Further, the bill does not prevent federal law enforcement authorities from enforcing the law and working with social media companies on addressing posts that implicate criminal conduct.”

Even as House Republicans propose a measure that would block federal officials from influencing social media, their bill is raising the suspicion that they themselves may have the same goal.

“It’s unfortunately part of a relatively common trend that we’ve seen over the past few years of performative legislation, which is designed as much to try and pressure platforms into adopting a particular stance as it is to actually make public policy,”” said Michael Karanicolas, the executive director of the UCLA Institute for Technology, Law and Policy in California. 

Karanicolas pointed out that Republican lawmakers have criticized social media platforms over content moderation decisions that they allege unfairly target conservatives.

“The focus on this bill is about preventing government officials from promoting that content be removed,” he said. “But it is worth noting that the opposite pressure can be equally problematic, where you can have prominent government voices using their platform to argue against platform enforcement actions [affecting] voices that they agree with.” 

Maryland Rep. Jamie Raskin, the senior Democrat on the Oversight and Accountability Committee, noted the bill’s threat to government’s public safety function, saying the federal government had a duty to warn about dangerous and unlawful content such as revenge porn, foreign political disinformation and incitement to violence and riot. 

“Federal law enforcement and security officials also have every right and duty to share information with social media platforms as needed to warn of serious threats to the public and content that may violate their own terms of service, which the platforms of course may or may not choose to act upon,” he said in a statement. “House Republicans’ attempts to cast such warnings as censorship is a twisted abuse of language and is sadly revealing of where they stand when it comes to threats to democracy and the rule of law in America today.” 

Granick, at the ACLU, said government use of social media platforms to censor speech is a serious problem. “I don’t think that means that anytime the government flags speech is improper,” she said. 

She said the bill could address it with more nuance: Social media companies could publish transparency reports about instances when an agency flags content, give individuals whose content is removed because of such a notice an opportunity to appeal the decision and develop internal processes to identify officials who repeatedly flag content for improper reasons.

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