Dear Senators Klobuchar & Lujan: Now Do You See Why Letting HHS Censor “Misinformation” Is A Terrible Idea?

You have likely heard that Donald Trump has nominated conspiracy theorist Robert F. Kennedy Jr. to be his next Secretary of Health and Human Services. This is dangerous and cruel for a very long list of reasons, but his nomination also exposes the critical flaws in a bill proposed by Senators Amy Klobuchar and Ben Ray Lujan just a few years ago.

In 2021, Senators Klobuchar and Lujan introduced a bill that would have given the Secretary of Health and Human Services the power to unilaterally declare what constitutes “health misinformation” online. Under the proposed law, a new exemption to Section 230 would be created for any content deemed misinformation by the HHS Secretary, which could open tech platforms up to lawsuits, creating immense pressure to block such content.

At the time, the bill seemed misguided and unconstitutional. In the hands of an anti-science zealot like RFK Jr. as HHS Secretary, it would be catastrophic.

From the bill:

Not later than 30 days after the date of enactment of this Act, the Secretary of Health and Human Services, in consultation with the heads of other relevant Federal agencies and outside experts determined appropriate by the Secretary, shall issue guidance regarding what constitutes health misinformation…

And then, any site hosting content so designated would be “treated as a publisher or speaker” of such “health misinformation,” effectively opening them up to lawsuits.

If that bill had become law, RFK Jr. could declare that factual information debunking his anti-vaccine conspiracy theories is “misinformation.” He could threaten lawsuits, or just unleash others to sue, to force social media platforms to silence anyone who corrects his dangerous nonsense about vaccines and autism.

Thankfully, Klobuchar and Lujan’s bill went nowhere, and for good reason. Giving a single political official the power to define “misinformation” runs counter to core First Amendment principles. What’s deemed “misinformation” could change radically from one administration to the next, creating a censorship regime beholden to electoral whims.

The RFK Jr. nomination illustrates exactly why we continually call out these kinds of bills. Because this is not the kind of power you want to give to the government (nor should you be able to under the First Amendment).

And if you don’t think that RFK Jr. wouldn’t take advantage of such a law had it been passed, you haven’t been paying attention. While RFK Jr. has been cosplaying as a “free speech” supporter of late, the reality is that he has a long and problematic history of trying to suppress speech and to punish people for their speech.

Even his latest “free speech crusade” is really a series of censorial failed lawsuits against social media companies for using their free speech rights to moderate his conspiracy theory nonsense. Even the very Trumpist Fifth Circuit just laughed one of his cases out of court a couple weeks ago.

But there’s an even longer, more disturbing history as well. A decade ago, he talked about how he believes his political opponents should be jailed for their speech, even calling them war criminals and accusing them of “treason.” Somewhat hilariously, at the time, he was talking about those who denied climate change and billionaires “impoverishing the rest of us.”

“They are enjoying making themselves billionaires by impoverishing the rest of us. Do I think they should be in jail, I think they should be enjoying three hots and a cot at the Hague with all the other war criminals,” Kennedy declared.

He might want to take a look at his new boss and the crew he’s hanging around with, given that Donald Trump has repeatedly denied climate change exists and promised to ramp up fossil fuel production in the country. And if we’re talking about billionaires impoverishing the rest of us, just take a look around you, Bobby.

Either way, the point is that RFK Jr. has a long history of deeply authoritarian and censorial instincts. He’s not a free speech supporter by any means. If Klobuchar and Lujan’s bill had been law, we would have just handed him the ability to censor any pushback to his dangerous views.

So, next time, can people actually listen to us when we raise the alarm about how problematic censorial bills are, and how they would be abused in the wrong hands?