On June 10, 2021, Senator Roger Wicker introduced the Promoting Rights and Online Speech Protections to Ensure Every Consumer is Heard Act (PRO-SPEECH Act or the Act). Some have responded to the PRO-SPEECH Act with vitriol, suggesting there is at least some confusion concerning what the bill does and doesn’t do. These reactions require a more sober analysis so that we can debate this Act on its merits.
What the PRO-SPEECH Act Actually Does
What the PRO-SPEECH Act Doesn’t Do
The PRO-SPEECH Act does provide a list of discriminatory behaviors related to content moderation that would be per se violations under Section 3, but the Act won’t flood the internet with lewd content. Opponents argue that provisions in Section 2 protect “any lawful content,” then point out that pornography is “lawful content,” and ergo Facebook will now be overrun with lewd images and videos. But isolating a two-word phrase in a statute to lay out a parade of horribles is a rather silly argument.
Start with a reminder from the late Justice Antonin Scalia: “You gotta read the whole paragraph.” Section 2 prohibits a large internet platform from engaging in a practice that “blocks or otherwise prevents a user or entity from accessing any lawful content, application, service, or device that does not interfere with the internet platform’s functionality or pose a data privacy or data security risk to a user.” [emphasis added]
The two italicized phrases are particularly relevant here, because the words, as they always do, matter. Let’s start with the first phrase. The Act could have required internet platforms to distribute all lawful content, but it didn’t. Instead, the Act says nothing about distributing pornography or other lewd materials to users that don’t want them—it just gives the control to users. In other words, if Facebook wants to allow users to block nude photos (or hate speech or other content), it can still do that. But it’s the consumer’s choice, not the company’s.
Next, let’s turn to the point about an “internet platform’s functionality.” Functionality is commonly understood to mean “the particular use or set of uses for which something is designed.” As such, Facebook would not be required to host content that interferes with its particular design as a platform. The underlying premise of the critique is that pornography would undermine Facebook or Twitter’s functionality as a social network—which is precisely what the Act already guards against. Therefore, we need not expect the Federal Trade Commission—the Act’s delegated expert agency to enforce its provisions—to say that Facebook or Twitter or any other internet platform must suddenly flood the net with spam and lewd images—especially when nothing in the legislation evinces a congressional desire to increase unwanted content, and the Communications Decency Act, which remains on the books, in fact evinces a contrary congressional intent.
The PRO-SPEECH Act is as “middle of the road” as it gets, while addressing some of the hardest issues now confronting tech policy without forcing these companies to change their business models or resorting to a complete rewrite of our antitrust laws. It is a model worthy of further study and deliberation.