Now try to consider how that scenario might play out if the Legislature passes a bill proposed by a Sen. Richard Pan, D-Sacramento. Pan last month proposed — and this is no exaggeration — making the attorney general the arbiter of social-media truths about medicine, vaccines, elections, and conspiracy theories. The bill is in limbo, but it provides insight into what some legislators will try.
Senate Bill 1390 would “prohibit a social media platform, as defined, from amplifying harmful content in a manner that results in a user viewing harmful content from another user with whom the user did not choose to share a connection.” It defines amplify as “to take action, either through manual or automatic means, that has the effect of increasing the viewership of certain material.”
So, while Facebook and Twitter users would still be free to post whatever nonsense they choose, the legislation would make social-media platforms liable if their algorithms or employees repost “harmful content.” One could easily envision its broad application to ads and other posts — and could see the Legislature incrementally expanding the categories of verboten misinformation.
Pan tries to make such a radical assault on the First Amendment (you know, government should pass no law abridging the freedom of speech) sound almost unobjectionable. “The bill would provide that harmful content includes libel or slander … threats of imminent violence against governmental entities, and disinformation or misinformation.”
California has libel laws. And it’s already a criminal offense to threaten violence against anyone, including a governmental authority. But the real kicker comes at the end of the sentence. Harmful content includes, but is not limited to “false or misleading information regarding medicine or vaccinations … elections, and conspiracy theories.”
I’ve had heated debates with people about vaccines and medical treatments as well as election fraud and conspiracy theories. I have no stomach for the latter, but an unproven theory isn’t necessarily a conspiracy — and it’s as difficult to legally define a conspiracy as it is to define “truth” or “misinformation.” So how would Sen. Pan address such a vexing problem?
His bill would “require a social media platform to establish a complaint process for users to access within the platform to report harmful content they believe has been amplified, and track each complaint in a database that is shared with the attorney general.” That would not only impose an incredible burden on private businesses, but it would vest within a highly partisan public official the right to determine the truth — and give the AG the power to enforce those provisions through legal action.
Instead of just ignoring or deleting posts that a person might find inaccurate or offensive, any offense-seeker could file a complaint with the state’s top law-enforcement official. Although the measure does not provide a private right of action that would allow individuals to sue the companies, it would literally turn every debatable social-media post into a potential for state legal action.
The legislation justifies this governmental intrusion into private speech by noting that, “Existing law prohibits a person, among others, from making or disseminating in any advertising device, or in any manner or means whatsoever, including over the internet, any statement concerning real or personal property or services that is untrue or misleading.”
That’s because the courts have long made a First Amendment distinction between political speech and commercial speech, with the latter receiving fewer protections presumably to protect the public from false advertising. It’s appalling that a bill would conflate the two, with the implication that regulating the dissemination of news stories, studies, and opinions about medical issues and elections is only a minor expansion of current law.
At the federal level, Senate Democrats had proposed Senate Bill 2448, known as the Health Misinformation Act of 2021. It would have stripped the Communications Decency Act’s Section 230 protections from platforms that spread health “misinformation” during a health emergency. Section 230 shields social-media companies from lawsuits related to the posts made by individual users.
What is health misinformation? The legislation would have vested that power with the federal secretary of Health and Human Services — a position currently held by a Democratic partisan, former California Attorney General and U.S. Rep. Xavier Becerra. But even the most libertarian HHS secretary imaginable (and it is really hard to imagine that) should not be given such power.
Sadly, in their frustration at censorship by social-media companies, many conservatives have embraced a host of tech regulations that give the government similar powers — and their wild rhetoric is paving the way for regulations that will only come back to bite them. (“Big Tech is an enemy of the American people,” Heritage Foundation President Kevin Roberts recently argued — forgetting that the government is always the biggest danger.)
But the Pan legislation really one-ups anything else out there. If someone sees a post that they find objectionable — and almost everything on the internet except cat videosis objectionable to someone these days — they could file a complaint with the state attorney general, who could then file a civil lawsuit against the tech companies.
Sure, the bill is mostly about making a point and the federal courts would almost certainly reject if it does pass, but its introduction is reckless and shows the willingness of some California lawmakers to trample on the nation’s fundamental free-speech principles.