Why Hawley’s Bill Will Fight Big Tech’s Censorship Of Conservatives
Every day brings news of Facebook or Twitter de-platforming yet another conservative writer. Academic studies confirm that major social media firms disproportionately de-platform conservatives. This should not surprise given that more than 90 percent of donations from big tech employees go to Democrats.
A majority of Americans now get their news from social media, and it is the primary source of news for young Americans. Such a marketplace of ideas, skewed by a discriminatory Internet, will further disadvantage conservative ideas in a media environment already hostile to them. Given this reality, conservatives have a clear and compelling interest in ensuring that our views can be seen on 21st-century news sources.
Missouri Sen. Josh Hawley realizes what is at stake. His recently introduced Ending Support for Internet Censorship Act will stop major internet firms from targeting conservatives.
The bill modifies the special liability break Congress gave internet providers in section 230 of the Communications Decency Act. Specifically, to receive the benefits of Section 230, the Federal Trade Commission would certify that a platform “does not moderate information provided by other information content providers in a manner that is biased against a political party, political candidate, or political viewpoint.”
What Section 230 Does
Congress passed Section 230 in 1996 to protect nascent internet platforms, such as Prodigy or AOL, essentially eliminating the liability resulting from user-generated content. In other words, Section 230 freed AOL from liability for libel or illegal threats resulting from their users’ postings.
This immunity is extraordinary, going far beyond that granted to other content providers. After all, bookstores and newsstands are liable for the libelous or otherwise tortious or illegal speech for which they have notice, newspapers have liability for the advertisements they publish, and even cable systems have liability for statements made on their public access channels.
One would think all conservatives would rejoice at a policy that would ensure conservative voices can be heard. Social media has become the public square, the village green, the telegraph and telephone networks of our times. Yet a tiny clique control it—a clique hostile to conservative ideas. If they are to receive the benefits, monetary and otherwise, of Section 230 protection, then they should be obligated to treat users without regard to their political views.
Please, Sir, May I Have Another
Even though many conservatives are delighted that at last they have a champion on Internet issues, some, notably David French writing in National Review and former representative Christopher Cox writing in the Wall Street Journal, have decried the bill. French, who attacks the bill as an unwise unconstitutional “mess,” assures us that “conservative sites and posts do very well on Facebook,” failing to note that it is precisely that success that has caused the aggressive campaign for banning by our tech overlords.
French calls for “persuasion not coercion” and voluntary First Amendment standards of moderation, closing by saying “sometimes you have to convince people to change.” Nonsense. The Internet moguls know exactly what they are doing, and the only way they are going to change is if they feel sufficiently threatened by the alternatives to doing so.
They are not censoring conservatives because they fail to understand our viewpoints and their implications, but because they understand them all too well. Anyone who thinks otherwise is engaging in idle speculations of political philosophy, not politics. French holds a strange faith that his arguments will make the scales fall from the eyes of the Internet monopolists, who have evidenced nothing but contempt for conservatives. French had better argue quickly before he gets kicked off the internet and can no longer exercise his persuasive powers to transformative effect.
These Are Old Legal Principles Applied in New Ways
Hawley need not wait for such a miraculous conversion, because his Ending Support for Internet Censorship Act rests soundly on established communications law and the First Amendment. First, dominant communications networks—from large messengers and and railroads to telegraph and telephone networks—always had obligations to serve customers in a non-discriminatory way.
To this day, neither the telephone company nor FedEx can deny you service because of your political views. Courts have never found these restrictions to violate the First Amendment—largely because, like Hawley’s bill, they strengthen the marketplace of ideas.
French claims Section 230 codifies “common sense.” He notes that neither Facebook nor his local newspaper is liable for the content he direct-posts on their sites — on a news feed (Facebook) or a comment board (newspaper.) And this is “common sense” because French believes that his Facebook comment is fundamentally his speech.
What French forgets is that if a newspaper were to publish his posts in its paper version, it would be liable for any libelous content it contains. Why? Because the newspaper chose to publish French’s speech and therefore has liability.
Under centuries-old common law principles, the same would go for an online platform—except for the gift of Section 230. Contrary to French, Section 230 is not common sense; it is an extraordinary immunity for which the public can reasonably demand political neutrality in return.
Hawley’s bill is perfectly consistent with the First Amendment. In claiming otherwise, French ties himself into knots. He cannot claim that it is common sense that social media posts are the speech of the poster and argue that the First Amendment protects social media platform’s decision to allow the post.
If a social media platform decides to host a post and the First Amendment protects that decision, the platform should be accountable for its decision. But French wants to treat a social post as only belonging to the poster for liability purposes but belonging to the platform for First Amendment purposes. This is not legitimate statutory interpretation; it’s a version of corporate “Heads I win, tails you lose” that exists solely to benefit big tech
Let Users Control, Not Tech Oligarchs
Cox, a co-author of the original Section 230, criticizes Hawley’s bill in the WSJ in a superficially more serious way, but just as erroneously. It should be noted that Cox is currently a lobbyist for NetChoice, the Internet trade association.
Cox claims that without Section 230 the internet platforms would end content moderation, and without moderation Facebook becomes a wild message board such as 8chan. Ignoring the hyperbole—no, Virginia, Grandma isn’t going to see 8chan content unless she is interested in it—Hawley’s bill in no way prevents or affects content moderation. Rather, it would encourage the internet giants to develop tools that give users, rather than tech oligarchs, control over what they wish to see.
Notably and revealingly absent in either Cox or French’s analysis is the notion that Facebook, Google, and Twitter are also fundamentally monopolies. Cox raises the specter of “hateful” and “dangerous” content being allowed on these platforms in the wake of a bill such as Hawley’s. But what Facebook and Twitter call “hateful” or “dangerous”— such as calling for strong immigration restrictions or “deadnaming” transsexuals—is only considered “hateful” and “dangerous” by certain leftwing elites. We should not allow the Ivy League-Silicon Valley hate speech consensus to determine how Americans may speak.
Cox’s approach in the end is almost as fanciful as French’s calling for the platforms to voluntarily make their language and examples on what they choose to censor clearer. But this ignores the fairness of the standards themselves as well as the reality that those responsible for setting those standards are the dedicated enemies of conservatism.
This Is Not a Free Market At All
Perhaps most fundamentally, the Ending Support for Internet Censorship Act does not reflect some dirigiste commandeering of free speech. Congress has always—and continues to—tinker with the marketplace of ideas.
It would encourage the internet giants to develop tools that give users, rather than tech oligarchs, control over what they wish to see.
Congress’s Postal Service Act of 1792 that established the post office had preferential rates for newspapers to ensure the young nation learned about the federal government’s great and good doings; President Franklin Roosevelt shamelessly avenged himself against unfriendly newspapers in awarding radio and television licenses; and, today, it is rumored that Democratic legislatures warn internet platforms to keep a handle on conservative speech lest they lose Section 230 protections.
Furthermore, critiques of Hawley miss the forest for the trees. True to pre-Trump conservatism, these critiques prefer the intellectual abstraction of free markets over the reality of the leftist domineering of the public square. The question is not whether Congress will regulate or not regulate the marketplace of ideas. It does and always has. The question is whether those rules and regulation will treat all voices fairly, rather than allow left-wing monopolists to control speech. Hawley’s bill would do a great deal to ensure such fair treatment.
None of this is to suggest that Hawley’s bill could not be improved in any way, or that its language and specifications could not be subject to amendment. This is always part of the legislative process. But sandbagging and surrender is not an improvement, and, stripped of their elevated phraseology, continued surrender is the only real alternative provided by the Cox-French crowd.
More sophisticated voices on the right, however, will also see Hawley’s bill, and the growing conservative support for it, as the stick that will bring big tech to the negotiating table so they can strike a meaningful bargain on free speech. But make no mistake: No such “grand bargain” with our hostile tech elite will happen until the tech giants realize that they have something very substantial to lose.
Adam Candeub is a professor of law at Michigan State University, were he directs the intellectual property, information, and communications law program. Jeremy Carl is a former technology journalist and web pioneer who has been writing about politics and the Internet for 25 years.