§ 230 and the Civil Rights Modernization Act

My testimony today before a House Subcommittee on Communications & Technology hearing on proposed revisions to § 230.

You can see the PDF of my testimony (and the other witnesses' testimony as well), but I thought I'd also blog the text; I commented separately on five different proposals, so I thought I'd break this down accordingly. As I noted, my plan was mostly to offer an evenhanded analysis of these proposals, focusing (in the interests of brevity) on possible nonobvious effects. I also included my personal views on some of the proposals, but I will try to keep them separate from the objective analysis.

[V.] Civil Rights Modernization Act

This bill would, among other things, allow liability (civil or criminal) for "target[ed]" paid "advertisements" that may violate

• "(A) any Federal, State, or local law, any part of which prohibits discrimination or other adverse action on the basis of a protected class or status [i.e., actual or perceived race, color, ethnicity, religion, national origin, sex (including sexual orientation and gender identity), age, disability, familial status, pregnancy, genetic information, or citizenship or immigration status];"
• "(B) any other Federal law that is administered or enforced, in whole or in part, by the Civil Rights Division of the Department of Justice; or"
• "(C) any Federal, State, or local law that prohibits the dissemination of false or misleading information intended, with respect to an election for public office, to prevent voters from casting their ballots or to prevent voters from voting for the candidate of their choice."

"Targeting" is defined as using technology "to deliver or show a covered advertisement to any particular subset of users who are part of or have a protected class or status."

This would likely cover discriminatorily targeted ads for employment, housing, and the like (under (A)). And it would also potentially hold platforms liable (under (C)) for accepting ads that ultimately prove "false or misleading" in a way "intended … to prevent voters from casting their ballots or to prevent voters from voting for the candidate of their choice," so long as the ads are targeted based on, for instance, age or familial status—or for that matter on citizenship status, in trying to focus on eligible voters.

This latter provision, related to elections, is potentially dangerous, because it puts platforms in a position where they can be liable for ads containing "misleading information." Platforms often know little about particular elections, and about whether particular statements about those elections are likely to be seen as false or misleading by a future judge or jury. And if "misleading information intended … to prevent voters from casting their ballots or to prevent voters from voting for the candidate of their choice" includes information intended to dissuade voters from voting or from voting for a candidate (and not just to dupe them into voting, say, at the wrong time or the wrong place[10]), platforms would potentially be still more exposed. Indeed, some jurisdictions do have statutes that purport to ban false statements about election campaigns; lower courts are split on whether such statutes are constitutional.[11]

The simplest way for platforms to avoid the risk of such liability is to require that any political ads as to which any question might arise—e.g., all political ads that criticize rival candidates and thus might be seen as including "misleading information intended … to prevent voters from voting for the candidate of their choice"—be run in a purely untargeted way (since the bill would only strip away immunity for allegedly false or misleading ads that are targeted). I'm not sure whether this would on balance improve election-related discourse or unduly interfere with it.

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[10] See Eugene Volokh, Are Douglas Mackey's Memes Illegal?, Tablet, Feb. 9, 2021, https://www.tabletmag.com/sections/news/articles/douglass-mackey-ricky-vaughn-memes-first-amendment.

[11] For cases upholding such statutes, see In re Chmura, 608 N.W.2d 31 (Mich. 2000); State v. Davis, 27 Ohio App. 3d 65 (1985). For cases striking them down, see Susan B. Anthony List v. Driehaus, 814 F.3d 466 (6th Cir. 2016); 281 Care Comm. v. Arneson, 766 F.3d 774 (8th Cir. 2014); Commonwealth v. Lucas, 472 Mass. 387 (2015); State ex rel. Public Disclosure Comm'n v. 119 Vote No! Comm., 135 Wash. 2d 618 (1998).