Lawmakers Use Kid Safety as Excuse To Violate Adults' Rights
Plus: New York "hate speech" law is likely unconstitutional, FTC Commissioner quits because of chair Lina Khan's antics, and more...
Bipartisan embrace of protect-the-kids measures means bad news for the internet. A "digital regulatory commission" that could shut down social media companies for failing to enact "best business practices" for protecting children. Requiring social media companies to monitor and limit how much time minors spend on them. Banning people under age 16 from social media entirely. Increased civil liability for tech companies. These are a few of the bad ideas proposed yesterday at a Senate Judiciary Committee hearing on "Protecting Our Kids Online," where proposals included some legislation that has been introduced before (such as the EARN IT Act and the Kids Online Safety Act) as well as some yet-to-be-seen measures.
In Congress and in the states, lawmakers recently have coalesced on kids' protection—from "grooming," to social media addiction, mental health issues, and more—as the reason to give the government more control over online speech and business practices.
It's a worrying development. The last time we saw politicians this focused on protecting children from the internet, we got FOSTA—a law that wreaked havoc on everything from dating ads to sex worker rights advocacy, LGBTQ content, and adult sexual expression online. It's a law that weakened Section 230—sometimes called "the internet's First Amendment"—and seriously chilled free expression on the internet while also making life less safe for sex workers and harder for authorities trying to stop sexual exploitation.
Since FOSTA passed in 2018, politicians and anti-tech activists started trying new strategies to justify more regulation of internet companies, content, and users.
The safety and mental health of minors has been among these justifications, but it's only one of many angles—including alleged antitrust violations, political bias, misinformation, election meddling, hate speech, gun violence, and more—that have been bandied about as reasons to break up big tech companies, reform or abolish Section 230, regulate algorithms, build backdoors into encrypted communications, and otherwise give federal bureaucrats more control over all things digital.
The results over the past few years have not been great. Some of these reasons appeal to one team or the other but lack bipartisan salience. Some seem to resonate with Extremely Online crowds but not normie types. Some find bipartisan political support but lack legal merit, like using existing antitrust law to attack tech companies (a strategy that's popular among Republicans and Democrats but keeps failing in court).
But "protecting the children" is a timeworn strategy for generating both bipartisan political support and the passion of even apolitical Americans. It's proven a fine excuse, time and again, for any number of regulations that people would balk at if they were invoked under any circumstances.
For many folks, all reason dissipates when you invoke children in danger. Politicians need no longer concern themselves with details like how their plans will actually protect children in practice, how they'll minimize unintended consequences, or whether these plans are constitutional at all.
Today I'm introducing legislation to set an age requirement of 16 to open a social media account. Protect kids online
— Josh Hawley (@HawleyMO) February 14, 2023
If a law is portrayed as protecting the children, many people won't ask questions. And those who do can be smeared as indifferent to children's well-being—or much worse. It all but guarantees that even lawmakers with qualms will go along to get along.
And even if these plans ultimately prove unconstitutional—as parts of FOSTA still might—it will take years to get there, during which time the damage is already done.
The more Republicans and Democrats coalesce around child safety as the main concern, the more dismal the future looks for those who care about free speech, privacy, and pluralism online.
New York "hate speech" law is likely unconstitutional:
Fed. judge holds that New York's law requiring social media sites to publish a complaint and response policy for hate speech (which the state calls "hateful conduct", heh) likely violates the First Amendment.
Preliminary injunction granted. https://t.co/IuJAqo0s5p pic.twitter.com/Qqizlg3exD
— Gabriel Malor (@gabrielmalor) February 15, 2023
Federal Trade Commissioner resigns with scathing words for FTC chair. Commissioner Christine Wilson announced in the Wall Street Journal on Tuesday that she is leaving the Federal Trade Commission (FTC). Her reasoning: the tactics being used by Chair Lina Khan. Accusing Khan of "disregard for the rule of law and due process," Wilson writes:
I refuse to give their endeavor any further hint of legitimacy by remaining. Accordingly, I will soon resign as an FTC commissioner.
Since Ms. Khan's confirmation in 2021, my staff and I have spent countless hours seeking to uncover her abuses of government power. That task has become increasingly difficult as she has consolidated power within the Office of the Chairman, breaking decades of bipartisan precedent and undermining the commission structure that Congress wrote into law. I have sought to provide transparency and facilitate accountability through speeches and statements, but I face constraints on the information I can disclose—many legitimate, but some manufactured by Ms. Khan and the Democratic majority to avoid embarrassment.
Consider the FTC's challenge to Meta's acquisition of Within, a virtual-reality gaming company. Before joining the FTC, Ms. Khan argued that Meta should be blocked from making any future acquisitions and wrote a report on the same issues as a congressional staffer. She would now sit as a purportedly impartial judge and decide whether Meta can acquire Within. Spurning due-process considerations and federal ethics obligations, my Democratic colleagues on the commission affirmed Ms. Khan's decision not to recuse herself.
I dissented on due-process grounds, which require those sitting in a judicial capacity to avoid even the appearance of unfairness. The law is clear. In one case, a federal appeals court ruled that an FTC chairman who investigated the same company, conduct, lines of business and facts as a committee staffer on Capitol Hill couldn't then sit as a judge at the FTC and rule on those issues. In two other decisions, appellate courts held that an FTC chairman couldn't adjudicate a case after making statements suggesting he prejudged its outcome. The statements at issue were far milder than Ms. Khan's definitive pronouncement that all Meta acquisitions should be blocked. These cases, with their uncannily similar facts, confirm that Ms. Khan's participation would deny the merging parties their due-process rights.
Wilson offers several other examples of what she sees as a disregard for due process, including:
In November 2022, the commission issued an antitrust enforcement policy statement asserting that the FTC could ignore decades of court rulings and condemn essentially any business conduct that three unelected commissioners find distasteful. If conduct can be labeled with a nefarious adjective—"coercive," "exploitative," "abusive," "restrictive"—it may violate the FTC Act of 1914. But the new policy contains no descriptions or definitions of these terms, many of which also lack context in the law. The commission also candidly explained that its analysis under the new policy may depart from prior antitrust precedent, and identified previously lawful conduct as now suspect. In other words, the new policy adopts an "I know it when I see it" approach. But due process demands that the lines between lawful and unlawful conduct be clearly drawn, to guide businesses before they face a lawsuit.
Khan offered this statement in response: "While we often disagreed with Commissioner Wilson, we respect her devotion to her beliefs and are grateful for her public service. We wish her well in her next endeavor."
????Major paper by @ArianaMGalian & Higham in press at JEP:G ????
Widely adopted "Bad News" and "Go Viral" games don't actually make people better at spotting misinformation - they just reduce belief in everything????
— David G. Rand (@email@example.com) (@DG_Rand) February 13, 2023
• One in 20 U.S. gun homicides are committed by police, according to the Mapping Police Violence database. "More than 1,100 people were killed by the police in both 2020 and 2021" and "the vast majority of these deaths were police shootings," notes The Guardian.
• Former South Carolina Governor Nikki Haley's presidential bid is an unappealing and confusing mix of MAGA and anti–Donald Trump. Haley's predicament "is that she's alienated what's left of the pre-Trump Republican establishment by embracing some of the personality and policies of her former boss. But she's been unwilling to fully commit to a Trumpian rebranding in the same way that [Florida Gov. Ron] DeSantis has," writes Reason's Eric Boehm.
• Are mental health awareness efforts contributing to the rise in reported mental health problems?
• "Alarmist narratives about online misinformation continue to gain traction despite evidence that its prevalence and impact are overstated," warn French researchers.