Free Speech

The PRO-SPEECH Act Is Anything but First Amendment-Friendly

The law would make a federal case out of every aggrieved internet user and compel companies to host messages they do not wish to platform.


It may be dubbed the "Promoting Rights and Online Speech Protections to Ensure Every Consumer is Heard" (PRO-SPEECH) Act, but a new bill from Mississippi Republican Sen. Roger Wicker is anything but First Amendment-friendly. Wicker's measure would ban huge swaths of online content moderation, forcing private internet forums to host speech that may currently violate their terms of service and be considered hateful, harassing, vulgar, or otherwise undesired.

The bill would also take aim at freedom of association and free markets, disallowing some tech services—such as app stores and cloud computing companies—from choosing what products they offer or what businesses they'll contract with.

Introduced Thursday, the so-called PRO-SPEECH Act strikes at the heart of First Amendment protections, compelling companies under threat of sanction from the government to platform messages they otherwise wouldn't.

Essentially, Wicker's bill is "net neutrality" legislation—something that was vehemently opposed by Republicans of yore—but for online content platforms, search engines, and marketplaces rather than internet service providers. The bill would make it illegal for digital entities to block or impede access to "any lawful content, application, service, or device" that doesn't interfere with platform functionality or "pose a data privacy or data security risk to the user."

The bill would also explicitly ban taking action against a user based on "political affiliation." Tech companies could no longer choose to ban, for instance, Nazi content or decline to host web forums devoted to white supremacist political groups. Web forums couldn't choose to be exclusively for conservative users, or progressive users, or so on.

"Approximately zero people actually want" the Internet this bill would create, Daphne Keller of the Stanford Cyber Policy Center commented on Twitter.

Notably, the bill would exempt from some provisions any company that "publicly proclaims to be a publisher."

It has been a common conservative delusion that Section 230 of the Communications Decency Act already turns on some sort of vital legal distinction between "publishers" on one hand and "platforms" on the other, with platforms having a responsibility to remain neutral conduits for content and only publishers allowed to set any rules for what types of content they will carry. This is not actually the way that Section 230 works.

But "Senator Wicker is trying to make the ridiculous and nonsensical 'publisher/platform' distinction an actual thing, despite the fact that this is blatantly unconstitutional," writes Mike Masnick at Techdirt. "The end result is that this bill leans into the moderator's dilemma and creates two types of internet sites: complete garbage dumps…where no moderation can take place, and Hollywood-backed squeaky clean productions. It wipes out the parts of the internet that most people actually like: the lightly moderated/curated user-generated aspects of social media that enable lots of people to have a voice and to connect with others, without being driven away by spammers, assholes, and abusers."

In addition, the bill also redefines anti-competitive behavior—the backbone of antitrust law violations—to include any large company blocking, prohibiting, or discriminating against any platform that competes with any part of its own business. No matter how many of a company's rules the quasi-competitor violated, it would have to be allowed.

The Federal Trade Commission (FTC) would have broad discretion to enforce the law, making it ripe for politics-based abuse. Small internet businesses would be exempt…except for when the FTC decides they are not.

Violations would be considered unfair and deceptive practices under the Federal Trade Commission Act. Anyone could register a complaint with the FTC alleging a violation, creating a massive new undertaking for the commission as internet moderation police and a massive new layer of bureaucracy for tech companies, which would be required to respond to every complaint.

In essence, the law would quite literally make a federal case out of every aggrieved YouTuber who gets demonetized, business that thinks its search results aren't high enough, troll who feels he deserves a right to say whatever he wants online, etc. If tech companies don't issue a reparation to the complainant, the FTC would be forced to open an investigation within five months.