Legislation being pushed in New York would majorly damage free speech by allowing the government to demand the removal of any information deemed “inaccurate,” “irrelevant,” “inadequate” or “excessive” by offended parties.
The legislation, introduced by New York Assemblyman David Weprin, is being talked up as “right to be forgotten” legislation.
But it could be more accurately described as a measure to ensure that only “approved” information is published.
That’s because Weprin’s legislation creates a broad system by which anyone can request that published information they claim is inaccurate be removed by the power of the state.
The bill would require publishers to remove offending information:
- Within 30 days of a ”request from an individual,”
- “all search engines and online speakers] shall remove … content about such individual, and links or indexes to any of the same, that is ‘inaccurate’, ‘irrelevant’, ‘inadequate’ or ‘excessive,’ ”
- “and without replacing such removed … content with any disclaimer [or] takedown notice.”
- “ ‘[I]naccurate’, ‘irrelevant’, ‘inadequate’, or ‘excessive’ shall mean content,”
- “which after a significant lapse in time from its first publication,”
- “is no longer material to current public debate or discourse,”
- “especially when considered in light of the financial, reputational and/or demonstrable other harm that the information … is causing to the requester’s professional, financial, reputational or other interest,”
- “with the exception of content related to convicted felonies, legal matters relating to violence, or a matter that is of significant current public interest, and as to which the requester’s role with regard to the matter is central and substantial.”
Writing for The Washington Post, legal expert Eugene Volokh, explains the follow of the “right to be forgotten” legislation:
So, under this bill, newspapers, scholarly works, copies of books on Google Books and Amazon, online encyclopedias (Wikipedia and others) — all would have to be censored whenever a judge and jury found (or the author expected them to find) that the speech was “no longer material to current public debate or discourse” (except when it was “related to convicted felonies” or “legal matters relating to violence” in which the subject played a “central and substantial” role). And of course the bill contains no exception even for material of genuine historical interest; after all, such speech would have to be removed if it was “no longer material to current public debate.” Nor is there an exception for autobiographic material, whether in a book, on a blog or anywhere else. Nor is there an exception for political figures, prominent businesspeople and others.
But the deeper problem with the bill is simply that it aims to censor what people say, under a broad, vague test based on what the government thinks the public should or shouldn’t be discussing. It is clearly unconstitutional under current First Amendment law, and I hope First Amendment law will stay that way (no matter what rules other countries might have adopted).
If the legislation is successful in New York and becomes excepted policy elsewhere, we could find ourselves on a slippery slope to the end of the 1st Amendment.