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Comment by dragonwriter | Hacker News Reader

> "Misinformation" is protected speech

In that case, the bill would have no effect, since suspending Section 230 protections only has an effect if there is some other basis for liability, and if misinformation is protected speech, there could never be any underlying basis for liability under state or federal law for 230 to protect against.

But I don't think you are correct. Knowingly or recklessly false, harm-inducing speech can be a basis for liability notwithstanding the First Amendment (see, e.g., the whole law of defamation), so, even if no such basis for liability currently exists, I can quite easily see a narrowly crafted law on civil liability for harms from misinformation relating to a public health emergency surviving strict scrutiny, with a mental state requirement similar to the Times v. Sullivan actual malice standard (since the subject matter would inherently be a matter of public concern.)

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If a person stands on a street corner handing out pamphlets falsely claiming that some individual, let's say a public figure, is a child molester, I understand the libel and liability. If, instead, that person handed out pamphlets saying that the Pfizer vaccine was experimental "gene therapy" that will result in "infertility," what happens then? I ask because the second seems closer to the liability you allege than cases of libel.

In practical terms, the effect of this bill would be the government flagging "misinformation," the social media companies rushing to take it down (and likely being proactive to take down "misinformation"), and then the person or group allegedly wronged by the take-down having to fight it all out in court. The first amendment is fundamentally about protecting political speech. Curbing speech because of "public health emergencies" is — I will assert — a sly attempt at getting around that. What we're talking about is political speech by another name. Isn't this the "chilling effect" we hear so much about?

> If, instead, that person handed out pamphlets saying that the Pfizer vaccine was experimental "gene therapy" that will result in "infertility," what happens then?

See, e.g., https://www.shouselaw.com/ca/personal-injury/harm-to-reputat...

falsity + malice + harm is a basis for liability in a number of different specific forms, and there very little reason to suspect that a new specific variation of that template would not withstand Constitutional scrutiny.

Thank you. But I guess my real point is that Section 230 gives social media companies a status closer to the print shop, in my example, than it does to the nut standing out on the corner. But the new law will now pick and choose, and the government will be doing the picking and choosing. That's why I put "misinformation" in scare quotes. The government is setting itself up as the arbiter.

This won't stop with the current pandemic. You're familiar with the recent "X is infrastructure" fad? "Public health emergency" is setting itself up as the next trick. That's the real issue.

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