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The Biden administration should take the First Amendment as seriously as Facebook misinformation

‘Reviewing’ Section 230 isn’t the answer to anti-vax posts

President Joe Biden speaks in front of a banner promoting Vaccines.gov with the slogan “WE CAN DO THIS” White House / Adam Schultz

Last week, the White House declared war on anti-vaccine misinformation and Facebook’s moderation system. President Joe Biden said that Facebook and other social networks were “killing people” by hosting false information about vaccines, although he later softened the attack. Facebook disputed the accusation sharply, promoting its vaccine efforts. And yesterday, the Biden administration hit back with a troubling — and unnecessary — promise that it was “reviewing” internet law in response to misinformation.

I want to be clear: the White House’s vaccine push is a good thing. American COVID-19 cases are abruptly rising as the virus’s Delta strain spreads, fewer than half of all Americans are fully vaccinated, and nearly all recent US COVID-19 deaths have been among unvaccinated people. A significant number of Americans report believing theories like “the US government is using the COVID-19 vaccine to microchip the population,” an idea that’s literally made up and wouldn’t even work. Companies like Facebook help spread these theories even if they’re also promoting trustworthy content. And elected officials can urge companies to stop doing something that’s harmful even if it’s legal.

But the White House hasn’t spelled out the last part of that equation. Instead, it’s offering blurred lines between reasonable guidance and an unreasonable government crackdown by condoning the idea that Facebook should be legally “accountable” for false claims.

In an interview with MSNBC about anti-vaccine misinformation, White House communications director Kate Bedingfield responded to a question asking if Biden would change Section 230 to make companies “liable for publishing that information, and then open to lawsuits.” Bedingfield responded that “we’re reviewing that, and certainly they should be held accountable.”

The idea that Section 230 is holding back a crackdown on misinformation is... well, misinformation. (And it’s not the first time Biden’s suggested it, either.) Section 230 protects against lawsuits involving illegal content. With limited exceptions, the First Amendment allows people to lie and be wrong online. There’s nothing for the Biden administration to “review” unless they believe one of three things:

  • Vaccine misinformation falls under existing First Amendment exceptions like defamation or fraud, and Section 230 should no longer shield companies that host it. (Posts doing things like selling non-vaccine COVID-19 “cures” might fit that bill, but probably not general false messaging about vaccines.)
  • Vaccine misinformation is so harmful that it should be made illegal and Facebook should then be held liable for letting users spread it. (Congress could theoretically define and ban “misinformation,” but it would be an uphill battle against the First Amendment’s protections.)
  • People should be encouraged to punish Facebook for hosting bad but legal content by making it fight frivolous lawsuits that it will almost certainly win.

The White House can encourage removing false medical information without supporting the idea of taking Facebook to court over it. As attorney and writer Ken White (also known as Popehat) pointed out on Twitter, Biden could have emphasized from the start that Facebook has a First Amendment right to allow much false information, even if he thinks the site has a moral duty to remove it.

Bedingfield could easily have made a similar point in her interview, even leaving the door open to changing Section 230 in other ways — something like “we believe in holding Big Tech accountable and are reviewing laws including Section 230, but we also respect platforms’ right to moderate legal content as they see fit and hope they’ll use that power responsibly.”

And when it comes to most false information online — especially information involving the coronavirus pandemic, where even good-faith medical advice and scientific consensus changes continuously — the US government should continue to respect the right to host that content. As Bedingfield later pointed out in the interview, it’s not like Facebook is creating anti-vaccination posts from scratch; major outlets like Fox News have pushed against vaccination efforts. Letting people sue Facebook for platforming them would be an indirect crackdown on the press and individuals, not simply “Big Tech” regulation. At least one group has directly sued Fox News for its coronavirus coverage, and the case was thrown out.

While the First Amendment’s protections aren’t limitless, trying to ban scientific misinformation would almost certainly backfire. Encouraging lawsuits over it would let companies pressure Facebook to take down stories about alleged pollution, dangerous products, or other unflattering but contested incidents. And “fake news” laws in other countries have become tools to silence legitimate protest.

The Biden administration making this clear wouldn’t silence every critic who believes all social media moderation is censorship. (After all, former president Donald Trump sued Facebook for voluntarily seeking policy guidance from his own administration.) But it’s the right way to handle a complicated problem — one that preserves the White House’s commitment to protecting the First Amendment along with Americans’ health.