Content Moderation 12/02/2020

The Online Content Policy Modernization Act attacks free expression and online safety for entirely political reasons

Chris Marchese
Chris Marchese Counsel

The latest in a flurry of awful Section 230 legislation is Senator Graham’s (R-SC) Online Content Policy Modernization Act (OCPMA). And just like the rest, it attacks both free expression and online safety for entirely political reasons.

By gutting Section 230 and imposing new liability for user-created content, this bill makes it near impossible for digital platforms like Reddit, YouTube, Parler, Twitter, and Facebook to promote free speech while still protecting their users from spam and harmful content.

The OCPMA destroys the foundational principles of digital free speech by limiting liability protection for user-created content only to platforms who agree to moderate in ways the government likes.

First, platforms can moderate only if the content being removed is “obscene, lewd, filthy, excessively violent, harassing” or if it’s “promoting self-harm, promoting terrorism, or unlawful”— these narrow categories mean things like disinformation and bigoted speech must stay up. 

Second, platforms and content providers would face added liability when they “editorialize” or “substantively modify” content. The bill doesn’t define either term, but safe to say, it’d likely include everything from fact checks to warning labels. 

In practice, these rules mean the opposite of what they preach. The OCPMA won’t prevent obscene and harmful content posted by users. That’s because, by restricting Section 230’s liability protections, this bill ties the hands of websites and forces them to under-moderate— protecting bigots, medical misinformation, conspiracy theories, and other harmful content at the expense of everyday Americans who want an enjoyable online experience. 

In fact, the OCPMA will inevitably harm the very speech it was designed to protect— conservative voices online. In a world where websites either under-moderate or stop moderating altogether, conservative voices and the services they share on will be hampered by trolling, hate speech, and spam. Conservatives currently succeed on social media and, in turn, well-run social media sites are successful too. 

But the OCPMA would upend this successful ecosystem by gutting Section 230. Sites conservatives use to share their news and views could become unviable, as objectionable content can’t be removed, leading advertisers to pull their patronage.

Plus, the bill is likely unconstitutional under the First Amendment. Generally, Congress may not interfere with a private business’s speech, including its editorial decisions, and may not compel private platforms to host speech that they disagree with. 

While Congress isn’t technically directing platforms to host any speech or requiring them to moderate a certain way, Congress is still conditioning liability protection in ways that violate the First Amendment. Indeed, Congress may not make content-based distinctions without a very compelling reason (which almost never exists). And this bill is entirely content-based: why may a platform remove “lewd” content and keep immunity, but not racist or bigoted content? That’s a content-based distinction that would most likely fail under the usual test for First Amendment disputes, strict scrutiny.

Likewise, the bill seems unconstitutionally vague: What does it mean to “editorialize”? The bill does not say. And thus, it chills far more speech than is necessary to accomplish whatever “compelling interest” the government’s lawyers can invent for the courts.

At the end of the day, the Online Content Policy Modernization Act violates these businesses’ constitutional rights and threatens the entire online ecosystem we’ve come to rely on. If passed, the bill will transform the internet into a content cesspool that hurts everyone’s speech, including conservatives’.

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