Government Regulation of Social Media Won't Protect Free Speech

Sen. Amy Klobuchar wants to put HHS Secretary Xavier Becerra, the former California attorney general with a reputation for being a partisan hack, in charge of "health disinformation" online.

Is it me or does the Facebook whistleblower's "bombshell" revelations seem like much ado about very little? The company's former product manager, Frances Haugen, has given the Securities and Exchange Commission and The Wall Street Journal thousands of internal documents that say more about the state of American culture than they do about the social-media company.

"No one at Facebook is malevolent, but the incentives are misaligned, right?" Haugen told CBS News. "Like, Facebook makes more money when you consume more content. People enjoy engaging with things that elicit an emotional reaction. And the more anger that they get exposed to, the more they interact and the more they consume."

If that's the issue, then one can just as easily blame newspapers, TV news shows, talk radio, and political parties—all of which benefit by stirring the pot. For some reason, people prefer conflict to happy thoughts about puppies (although there are plenty of those posted on Facebook). Do we blame the medium or the human condition?

Haugen shared an internal Facebook survey showing that Instagram increases thoughts of suicide and worsens eating disorders among teens. I would never minimize the tribulations of being a teenager, but Haugen seems woefully naive. Young girls have always compared themselves to the photos of fashion models in magazines. Teens were vicious to one another long before Instagram.

Again, do we blame social media or something deeper? The same goes for commenters who post incendiary information on their Facebook pages. These are platforms, which people use for good or ill. This nonsense reminds me of liberal politicians who blame video games for gun violence and conservative politicians who blame Hollywood movies for an erosion of the nation's morals.

It's time to grow up. The problem with the latest hysteria: A rash of new rules and regulations will certainly follow. As The Wall Street Journal noted, Haugen's testimony before Congress "builds momentum for tougher tech laws." Of course it does, and conservatives—who will be on the receiving end of whatever passes—will only have themselves to blame.

"(T)he time is ripe for the regime and the digital medium to face a long-overdue just comeuppance," wrote Josh Hammer in The American Mind, in a typical conservative diatribe against tech firms. Hammer calls for Congress to "rein in the 'Mountain View-Menlo Park nexus of woke leftist corporatism…lest technocracy vanquish democracy anew.'"

To paraphrase H.L. Mencken, conservatives may get what they deserve, good and hard. Congress is floating proposals to rein in tech companies, including efforts to overturn the Section 230 rule of the Communications Decency Act that protects those firms from liability from the posts made by individuals. Without that rule, these platforms could never have taken off.

By eliminating that regulation, many conservatives think they will punish tech companies for their alleged censorship of conservative views, but the opposite is more likely. The firms won't let their sites turn into the equivalent of your spam folder—so they will do what progressives want and tightly control everything that's posted.

For a peek into the future, read the Health Misinformation Act of 2021, sponsored by Sens. Amy Klobuchar (D–Minn.) and Ben Ray Luján (D–N.M.). It would strip Section 230 protections from tech platforms during a health emergency if they allow the spread of misinformation. Any freedom-cherishing American should spot the obvious flaw.

"What is health misinformation?" asked New York Times columnist Farhad Manjoo. "I know of no oracular source of truth about COVID-19. Scientific consensus has shifted dramatically during the pandemic, and even now experts are divided over important issues, such as whether everyone should get a vaccine booster shot." Bingo.

Actually, Klobuchar and Luján identified the nation's oracle of truth in the S. 2448's text: "(T)he secretary of Health and Human Services … shall issue guidance regarding what constitutes health misinformation." In other words, we'll all be free to post whatever information passes muster with HHS Secretary Xavier Becerra—the former California attorney general who has a reputation as a partisan hack.

Here's an AG who used his title-and-summary writing authority to undermine the chances of voter initiatives he didn't like—and he's going to make the call on what amounts to fair-minded health-related discussions? Good grief. Even if Becerra were the Oracle of Delphi, no government official should have the power to determine "misinformation."

This bill is unlikely to pass constitutional muster, of course. The First Amendment doesn't apply to private social-media companies' content-moderation practices, but it would apply to a federal mandate that companies defer to the health czar. Bad lawmaking is the expected result when we join in the Facebook-is-Satan hysteria.

Feel free to blame Facebook for your ills—and the angst of your teenage children—but this legislation reminds us that whatever problems private companies cause, the government always poses the biggest threat to our wellbeing.

This column was first published in The Orange County Register.