A new bill expected to strengthen hate speech and harassment on social media may face potential problems because of wording that treats speech as protected under the First Amendment, whether or not it is actually harmful, critics have argued.
“The text of this bill appears to be that speech is protected if it’s only bad, only if it’s harmful, but it’s also protected if it’s merely offensive,” ACLU Executive Director Anthony Romero told C-SPAN’s “Newsmakers.”
The new bill introduced in the Senate could also restrict “mean” speech, such as trolling, which some say prevents online bullying and harassment.
“The meaning of the law matters a lot,” Romero said. “If we’re talking about hate speech…what’s unlawful or indecent speech? And that’s where things get a little challenging.”
In the past, the number of people who are prosecuted for hate crimes — including the federal hate crime statutes — has declined. In 2013, the most recent year for which federal data was available, for every 1,000 victims of hate crimes there were 46 prosecutions. In 2016, that number had dropped to 41 prosecutions per 1,000 victims.
“It does seem as though [the number of prosecutions is] falling — I don’t think anyone could say that it’s soaring,” Romero said.
A Yale Law School professor told The Hill in 2016 that more people are being prosecuted under other federal laws, including hate crimes, harassment and unlawful use of an electronic device, such as stalking.
It has been reported that the bill, titled the Social Media Accountability and Transparency Act, was scheduled to be introduced in the Senate this week, but was not ready for a public unveiling. An aide to the Senate Judiciary Committee told Fox News it did not yet have a scheduled hearing.
Hateful posts and messages on social media are thought to be contributing to the violent surge in hate crimes, like the one that took place at a synagogue in Pittsburgh on Saturday, a reminder that the prevalence of online posts is making it difficult to identify and charge offenders.
“The problem is there are these platforms where the content is merely hateful or even cruel, but without any information or intent to create harm, the courts may not be able to prove that those sorts of free speech restrictions are constitutional,” Romero said.