Recent injunctions, in both Florida and Texas, against state-level social media laws championed by Republicans illustrate the difficulties of regulating content moderation online. Democrats in New York state have now introduced their own attempt to regulate platforms like Facebook and YouTube. If passed into law, this bill would be found invalid on the same grounds as its unsuccessful southern counterparts.
New York S. 7568 takes on content moderation, just as the Florida and Texas laws did. But while those laws attempted to stop platforms from removing or demoting certain third-party content, the Empire State’s legislation incentivizes platforms to not amplify certain third-party content. It would make the platforms liable for content that leads to “imminent lawless action” and “imminent self-harm” and for information that is “false” and “likely to endanger” public health when any of that content is promoted by an algorithm.
Pinning new liability to an algorithm won’t help this plan pass First Amendment scrutiny. All the same distinctions between speech and actual physical violence continue to exist. All the difficult questions about who decides what is “true” as issues evolve persist. But if faced with the liability costs of the legislation’s twinned state and private rights of action, platforms won’t take any chances. Instead, it would be rational for platforms to stop promoting all content that could even potentially be the subject of costly litigation, thus diminishing the overall user experience.
Even if the New York bill were to survive First Amendment challenges (which it would not), it still remains preempted by the federally enacted Section 230 of the Communications Decency Act of 1996. Section 230 protects platforms from liability for third-party content regardless of the chronological, algorithmically amplified, or demoted treatment of that content. The supremacy of federal law over conflicting state law applies here, and for good reason—navigating a potential 50 distinct regulatory regimes online would be a logistical nightmare for any platform.
Unconstitutional, preempted, and a bad idea in practice all make New York’s bill a waste of taxpayer money. Lawmakers would be wise to stay out of regulating content moderation and let market solutions address critics on both left and right.