Arguing About The Law With Your Fox-Loving Uncle This Thanksgiving

When I retired from full-time legal practice a couple years back, I pledged to use my time constructively: finishing that book I’d always wanted to write; volunteering in the community; getting a little more involved in politics.

So, naturally, I ended up wasting hours and hours on Twitter.

I try to steer clear of the platform’s ugly side, dwelling primarily in Music Twitter, where complete strangers argue over which is the Beatles’ best album. [Narrator: It’s Abbey Road.]

But like a driver slowing down at the scene of the accident, I occasionally find myself wading into the toxic cesspool of social media political debate (“debate” in only the loosest sense of the word). And sometimes this draws me into a discussion of some highly-politicized legal issue, invariably causing me to pull out my (remaining) hair at the disturbing level of legal disinformation.

Of course, if bogus legal theories were limited to the back-alleys of social media, they wouldn’t warrant much concern. But these unfounded contentions are increasingly slipping out into the real world, typically through such luminaries of the right-wing brain trust as the Let’s-Inject-Bleach Former Guy and the Jewish Space Laser Congresswoman, where they gain traction among conservative media. Which means it’s all but certain you’ll be hearing the same arguments from your Fox-loving uncle at Thanksgiving — rapidly-approaching and presumably back in person this year. To help you prepare for a long evening waiting for pie, here are a few of the more frequently-repeated legal myths, and how you can rebut them.

Hungry, Hungry Hippas

The pandemic crisis of the past two years has fomented a wealth of medical disinformation, as our fellow Americans forswear vaccines for turning people into magnets and instead dine on horse deworming paste. Alas, the same people spouting medical conspiracy theories make equally misinformed legal arguments in defense of their stance.

Opponents of vaccination and masking have turned to a once-obscure law that utterly fails to support their position. The Health Insurance Portability and Accountability Act — or HIPAA for short — was enacted largely to ensure the portability of insurance coverage when workers changed jobs. However, the law also includes provisions requiring health care providers and health insurers to maintain the privacy of patient medical records. Somehow, the Covid truthers have extrapolated this into a nonexistent rule that any question about someone’s health is strictly illegal.

Contrary to their assertions, a restaurant asking if you’ve been vaccinated is not a HIPAA violation. Nor can you ignore mask requirements by insisting that your refusal to do so is a private health matter protected under HIPAA. Again, the law only limits disclosure of your medical records by health providers; it has nothing to do with whether the patient himself or herself can be asked about their own health.

This doesn’t mean a patron of a restaurant or a corporate employee has to share whether they’ve been vaccinated; but it also places no limits on the ability of a business to block customers or employees who fail to provide proof of vaccination from their premises.

So when a reporter asked the QAnon Representative Marjorie Taylor Greene if she’d been vaccinated, and she replied, “your question is a violation of my HIPAA rights,” she was, as usual, spouting gibberish. Not that this legal mumbo-jumbo is limited to embarrassing elected officials; a few months ago, when an NFL quarterback was asked if he’d been vaccinated, he similarly replied, “I think that’s HIPAA.” [Note: It’s not.]

Fortunately, people who fail to understand the scope of HIPAA also have a tendency to mislabel the acronym as HIPPA (with two p’s, like in hippo) — so if you see a reference to HIPPA on social media, it’s a helpful warning that what follows is likely to be wildly inaccurate.

To be sure, there are circumstances where navigating medical privacy can be tricky. Employers, for example, are subject to disability anti-discrimination laws which limit their ability to inquire into an employee’s medical condition, and thus an employee’s claim that they are physically unable to take the vaccine can raise complex issues. But these have nothing to do with HIPAA, and in no way restrict businesses from inquiring into a customer’s or employee’s vaccination status.

Twitter Is Infringing My First Amendment!

Ok, this one’s pretty easy, but that hasn’t stopped countless online denizens, not to mention the former leader of the free world, from getting it completely wrong. Back around the time the red-hat crowd mounted an insurrection at the Capitol to prevent the counting of the electoral vote — which is apparently how we’re doing democracy these days — Facebook, Twitter, and other online platforms decided that perhaps it wasn’t a great idea to let their websites be used to foment anti-democratic violent uprisings. They went and kicked these folks, from the Former Guy on down, off their platforms for violating their terms of service — the rules you agree to (but never actually read) when you open an account, which typically prohibit violent extremism, harassment, and so on.

Naturally, large swaths of people started venting about the violation of their rights under the First Amendment, a relatively short paragraph they had apparently never read. It provides, “Congress shall make no law… abridging the freedom of speech.” See that very first word? Congress? Yeah, not Twitter, not Facebook. Congress. Because the First Amendment is a limitation on what the government may do vis-à-vis your speech rights, not some social media company. (While initially interpreted as limiting only federal authority, it was later expanded to bind any government body.)

So, no, neither Twitter nor the business down the street has a constitutional obligation to respect your freedom of speech. You can no more compel YouTube to host your video about how Covid vaccines are full of tiny octopus-like creatures (I’m not making that up) than you can wander into the local coffee shop and insist they post your hand-scrawled crazy-person sign in the front window next to the concert schedules and lost-puppy fliers. Internet platforms’ decisions about who may use their services and on what terms implicates the First Amendment to the same degree as a restaurant with a no-shoes-no-shirt-no-service sign; that is, not a whit.

Sure, the Former Guy has managed to find attorneys willing to sue Twitter for locking him out of his account; but he also found attorneys who lost some 60+ cases alleging non-existent election fraud and who held press conferences outside the manure store next to the porn shop, so there’s that.

Perhaps recognizing the futility of their argument, these lawyers, and others on the right, have posited that social media companies are effectively arms of the federal government and thus bound by the First Amendment. They point at congressmen lecturing social media companies to do more to limit dangerous speech (and, more recently, a White House push that Facebook do a better job curtailing vaccine misinformation). Alas, absent some government action ordering social media sites to censor particular speech or penalizing them for failing to do so, this argument is a serious stretch with no legal support. To say nothing of how absurd it is that the guy complaining the government of the United States forced him off of Twitter was, at the time of his removal, [checks notes] the President of said country.

Finally, for a court to compel an online company to host content over its objections would itself infringe the First Amendment. As Mitt Romney inartfully but not incorrectly said, corporations are people, my friend. And corporations have certain free speech rights. So WordPress deleting your blog post claiming that school shooting victims are actually child actors perpetrating a massive hoax would not violate the First Amendment; but requiring them to carry such content almost certainly would.

230 Problems (Legal Accuracy Ain’t One)

For our third and final legal issue, we need to wrap our hands around something called Section 230, but bear with me, as the odds of your getting through Thanksgiving without some Tucker Carlson fan at the table citing Section 230 are just about nil. Honestly, it’s the biggest thing in the right-wing Twitterverse; search “Section 230” and you’ll get even more hits than searching “HIPPA.”

Section 230 of the federal Communications Decency Act (CDA) offers an important lifeline to internet companies (and, for that matter, any individual with an online presence). It provides that an online computer service is not deemed to be the publisher of information posted by a third party. Meaning that your local internet provider, or a social media platform, or an online newspaper that allows readers to post comments, can’t be held liable for something written by someone else. Or, to be more specific: if someone posts a comment on my music blog calling Van Morrison a conspiratorial loon, Van Morrison can’t turn around and sue me for it.

The importance of this provision to the vitality of the internet is pretty obvious. Imagine trying to launch an online company if every message posted by one of your users could subject you to a lawsuit. Theoretically every status update on Facebook, every video on YouTube, every gripe about suspicious solicitors on NextDoor, and every review on Yelp would need to be reviewed and researched by the company to ensure it wasn’t libelous or misleading or could in any conceivable way lead an aggrieved reader to try to collect some damages from the company’s deep pockets.

There are limitations to this broad immunity, of course. A web-based platform may still face criminal liability for, say, allowing sex trafficking to be conducted on its site, and may be sued for facilitating copyright infringement (which is why YouTube had to develop tools to block that adorable video of your toddler dancing to Taylor Swift songs).

But that’s not all. Section 230 also provides that an internet company cannot be held liable for removing materials it considers lewd, or violent, or harassing, or otherwise objectionable, if done in good faith. And this is where things go off the rails. The same people complaining that having a Twitter post blocked is a flagrant First Amendment violation [quick recap: it’s not] also complain that by “censoring” third party content, Twitter is acting as a publisher under 230 and is no longer protected from liability.

Of course, nowhere does Section 230 say any such thing. That is literally the opposite of what the statute provides. Online entities are expressly permitted to block content they find objectionable, and are not magically transformed into the publisher of third-party content for doing so. Suggesting that Facebook’s decision to block revenge porn or Holocaust denial from the website opens the door to liability for every post it leaves up is absurd and contrary to the statutory language and intent. (Indeed, the whole purpose of the CDA — remember, the “D” stands for “Decency” — was to encourage censorship, not to prevent it, much to the chagrin of free speech activists at the time.)

You’ll also hear that, even if social media companies are permitted to block content, they must do so “even-handedly” and “objectively.” Never mind trying to figure out what this even means — if Twitter deletes posts that use the N-word, must it also block all posts that aren’t racist? You know, just to be fair?— but, more importantly, Section 230 says nothing of the kind. There is no requirement that companies be “neutral” in how they elect to moderate content. As a legal matter, Twitter can block all liberal posts. It can block all conservative posts. It can block all posts praising the music of Steely Dan. It’s their company, and if you want to use it, you do so on their terms.

Again, this is not entirely unlimited. Online companies, like any other companies, are subject to anti-discrimination laws. They can’t block all Black users, or Muslims, or women, or immigrants. But being a Republican or a Democrat or a conspiracy theorist or an incel who likes to tell misogynist jokes isn’t a protected class under anti-discrimination law, and these sites can be as biased against you as they’d like.

Now, in wrapping things up, let’s get one thing straight: There are a lot of reasons to bemoan the ways in which social media companies moderate (or, more frequently, fail to moderate) third party content. And it has nothing to do with supposed anti-conservative bias, a repeatedly debunked boogeyman. Some of these websites do an atrocious job of dealing with sexist, racist, homophobic, and otherwise bigoted harassment, and their propagation of conspiracy theories and dangerous medical disinformation is well documented. There are ways Section 230 could be improved to better incentivize companies to moderate content and create a safer space for users. I’ll leave that for the policy-makers (god help us). But when it comes to your Thanksgiving dinner, you should be comfortable explaining to grandpa that Facebook’s decision to pop up a little disclaimer every time he types HYDROXYCHLOROQUINE into the box is not a violation of the law.

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Marc is a semi-retired securities lawyer and the author of the rock music love letter Jittery White Guy Music. Visit him at http://www.fagel.com.

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Marc Fagel

Marc Fagel

Marc is a semi-retired securities lawyer and the author of the rock music love letter Jittery White Guy Music. Visit him at http://www.fagel.com.

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