As tech giants come under rightful scrutiny for their lack of transparency and unchecked power over free expression online, politicians in the United States and around the world are exploiting the moment. They are using the pretense of supposed censorship by platforms to issue laws that outlaw or hobble content moderation. Whether it’s in Florida, Texas, Wisconsin, Brazil, Poland, or Hungary, politicians are proposing “anti-censorship” laws that are actually designed to let those with political power arbitrate what can be said and to open up the spigots of disinformation, trolling, and abuse. “Fake news,” meet Fake Censorship.
Here are three recent examples:
In May, Florida led the pack among U.S. states when Governor DeSantis signed SB 7072 into law. SB 7072 (the “Big Tech Bill”), among other things, categorically prohibits platforms from deplatforming candidates for state and local office. At PEN America, we generally agree with the argument that SB 7072 seems to make: notwithstanding calls for violence or equivalently violative speech, platforms should recognize the overwhelming public interest in maintaining access to political candidates and elected officials. However, SB 7072 raises very significant First Amendment concerns, on which the law was promptly temporarily blocked by a federal judge. SB 7072 not only asserts that there is a public interest in access to what candidates are saying, but requires the government to enforce it. It effectively transfers unchecked power of moderation from the hands of the platforms into the hands of the executive branch and the courts. In doing so it throws open the door to partisan influence, and potentially to unchecked extremism on the part of candidates, particularly if their party is already in power. Out of the frying pan, into the fire.
There is a second problem with SB 7072, though, which is at the heart of the fake censorship strategy. It is a publicity engine for unfounded claims (per a growing body of research) that tech companies take down content based on their political biases. For DeSantis, who touted the measure as a response to former President Trump’s suspension from several platforms for his role in the insurrection at the U.S. Capitol, the law was likely a political win regardless of having been blocked, because it generated outrage and mobilized his political base. This win-win dynamic is a troubling part of the appeal of Fake Censorship strategies.
In Texas, Governor Greg Abbott expressed support for Florida’s approach and has now followed suit. On September 9, Abbott signed HB 20 into law. The Texas law differs significantly from Florida’s: It does not focus on political candidates, drawing instead on a long-running argument among Republicans that social media platforms above a certain size should appropriately be treated as ‘common carriers’—providers of private infrastructure that has a role as a public utility, similar to phone networks—and therefore should be prohibited from engaging in monitoring, or moderation of communications they host. House Bill 20 includes a number of mundane and often reasonable requirements for transparency reporting and communications with users about appeals of content moderation, but it also broadly prohibits “censorship” by social media companies—under a definition that includes not only removal of content or accounts but “to block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.”
The definition of “censorship” here is so broad as to prohibit platforms from shutting down or even reducing the virality of deliberate disinformation campaigns using automated accounts or efforts by extremist groups to plan and coordinate violence. It would tie their hands in responding to cases of coordinated, large-scale abuse like the ‘hate raids’ that recently spurred a virtual walk out by Twitch users. Like the Florida law, HB 20 is now the subject of a lawsuit that challenges its constitutionality under the First Amendment.
Finally, in Brazil, President and bumbling autocrat Jair Bolsonaro issued new social media rules that prohibit social media companies from removing most content and allowing even nominally permissible removals, such as of content that advocates violence or violates copyright, only after judicial review. Like SB 7072 and HB 20, Bolsonaro’s rules appear baldly political, seeking to bolster his chances in the upcoming elections. And like those laws, Bolsonaro’s rules would remove autonomy from the public and from the tech industry and concentrate it directly in the hands of the government and ruling party. On September 14, Bolsonaro’s decree was, thankfully, effectively nullified by the Brazilian Senate.
So what do we make of all this? A useful and troubling parallel can be found in the onslaught of so-called “fake news” laws that have been proposed and enacted globally. Since 2016, and at an accelerated pace during the pandemic, dozens of countries have passed laws that purport to fight disinformation but instead bolster governmental powers of censorship and intimidation. In the United States, politicians at the state and national level have at times floated similar ideas—often in the guise of poorly-designed congressional proposals for changes to Section 230.
These efforts share in common a desire to create new powers over legally protected speech in the hands agencies, committees, and lawsuits that may be subject to political manipulation or influence. In short, the problem with “fake news” laws is not only that they undermine our shared sense of truth, criminalize speech, and empower politically motivated censorship, but that they concentrate power over speech in order to make it more susceptible to politics and less accountable to the public. In that sense it should come as no surprise that the most enthusiastic supporters of Fake News and Fake Censorship laws often come from the same quarters, despite their seemingly contradictory messages. As U.S. Senator Ron Wyden recently tweeted: “Censorship and forcing the media to play host to lies and disinformation go hand in hand.”
Like Fake News laws, Fake Censorship laws claim the moral high ground while in fact serving to amplify the ability of powerful interests to disinform the public and intimidate or drown out their critics. As U.S. District Judge Robert Hinkle wrote in his preliminary injunction barring enforcement of DeSantis’ SB 7072, fake censorship laws, at best, are like “burning the house to roast a pig.” It is true that the power of Facebook and its peers over speech globally must be checked. But the truth of what is being attempted in Florida, Texas, Brazil, Poland, Hungary or in triplicate in Wisconsin, is actually worse: it’s burning the house to silence the neighbors.
Whistleblowers and sources inside the companies are shedding urgently needed light on how the platforms have been managed. Frances Haugen, Sophie Zhang, and others are– at great personal cost– calling Facebook in particular to account. However, in this catalyzed political moment the danger of anti-democratic responses to anti-democratic problems also rises. SB 7072, HB 20 and the like may prove dress rehearsals for what comes next.
Matt Bailey serves as PEN America’s digital freedom program director, focusing on issues ranging from surveillance and disinformation to digital inclusion that affect writers and activists around the world. Bailey previously served as a senior advisor for the National Democratic Institute. Before that, he was a civil servant in the Office of the United States Chief Information Officer under two presidents. Previously, Bailey served the city of Washington, D.C., as its first director of technology innovation and was an early employee at the U.S. Consumer Financial Protection Bureau. He has also worked as a cybersecurity engineer and analyst, a software developer, and co-founded Code for DC, an affiliate of Code for America. Bailey holds a MA in literature from Georgetown University.