Missouri Sen. Josh Hawley, a conservative attorney with a strong populist background, recently introduced a bill that would give the government new, broad powers to regulate tech companies — an escalation of the right’s push to fight back against what they see as unjust censorship of conservatives on social media sites.
Their concerns are myriad — allegations of “shadowbanning” on Twitter, YouTube channels belonging to popular right-leaning figures getting demonetized, and right-wing firebrands like conspiracy theorist Alex Jones getting banned from major streaming platforms entirely — though others have argued that those concerns are overblown at best.
But for his part, Hawley wonders if social media has any real benefit to society at all, telling National Review, “Are these platforms — the social-media platforms in particular — are those really good for the economy, for society, for the country? Are they really adding anything at all?”
Under current law, social media sites and all other websites that permit third-party users to post content are protected from lawsuits over content their users produce and the moderation choices they make (outside of intellectual property violations and some federal crimes) — and that’s where Hawley’s proposal comes in. It attempts to weaken the protections granted to social media companies by requiring them to first show regulators how they make decisions about content and then prove to those regulators that their moderation systems are “neutral.”
The entire moderation process of these big tech companies is shrouded in secrecy because they refuse to make their protocols public. If tech giants want to keep their government-granted immunity they must bring transparency and accountability to their editorial processes.— Senator Hawley Press Office (@SenHawleyPress) June 20, 2019
There is little chance of the bill becoming law anytime soon. Hawley has no co-sponsors in the Senate and there’s been no appetite for it in the House so far. But the significance of the Ending Support for Internet Censorship Act isn’t just about whether it gets a vote. It’s the first shot across the bow in Congress on behalf of a rebellion that cares so deeply about their cause that they are willing to bend on their core anti-regulatory beliefs to do something about it.
How Josh Hawley would change the internet
As I’ve explained before, companies like Facebook and Twitter have special protections under Section 230 of the Communications Decency Act of 1996. Courts have interpreted the law and its authors have explained that the provision is intended to mean that tech companies are not legally responsible for third-party content (i.e., what users post on Facebook or Twitter), and those companies also have the power to moderate and edit that content without being sued for what they choose to remove or keep:
The idea of the law is to give Facebook editorial control over its content: the ability to monitor, edit, and even delete content (and users) it considers offensive or unwelcome according to its terms of service. These rights theoretically existed before Section 230 (thanks to the First Amendment), but Section 230 clarified it:
No provider or user of an interactive computer service shall be held liable on account of—(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected ...
Legal scholars and courts have interpreted this to mean that Section 230 gives social media companies the power to moderate not just content but users.
Courts have reaffirmed both the text and the underlying principles of Section 230. For example, Twitter was found to have the right to boot white nationalists and conspiracy theorists alike, and the Supreme Court found just last week in Manhattan Community Access Corp. v. Halleck that private companies that offer public forums are “not subject to First Amendment constraints on its editorial discretion.” The majority opinion in the case was penned by Justice Brett Kavanaugh, who wrote:
In short, merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints. If the rule were otherwise, all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints and would lose the ability to exercise what they deem to be appropriate editorial discretion within that open forum. Private property owners and private lessees would face the unappetizing choice of allowing all comers or closing the platform altogether.
A small cadre of conservatives argue the section has been misinterpreted. Sen. Ted Cruz, for example, says “neutrality” is a requirement to receive the legislation’s protections. Legal scholars, the law’s authors and original supporters, and the American judicial system have reaffirmed that that is not a requirement. Nor is that included in the text of Section 230.
But ESICA, if passed, would change this significantly. First, it would require companies over a certain size (both in users and in profits) to submit to an external audit by the Federal Trade Commission every two years to prove:
that the provider does not (and, during the 2-year period preceding the date on which the provider submits the application for certification, did not) moderate information provided by other information content providers in a politically biased manner.
And Hawley defines “politically biased” moderation as the following:
‘‘(ii) POLITICALLY BIASED MODERATION — The moderation practices of a provider of an interactive computer service are politically biased if — ‘‘(I) the provider moderates information provided by other information content providers in a manner that — ‘‘(aa) is designed to negatively affect a political party, political candidate, or political view point; or ‘‘(bb) disproportionately restricts or promotes access to, or the availability of, information from a political party, political candidate, or political viewpoint; ‘(II) an officer or employee of the provider makes a decision about moderating information provided by other information content providers that is motivated by an intent to negatively affect a political party, political candidate, or political viewpoint.
According to the text of the bill, employees who moderate content in a way determined to be “politically biased” would be immediately terminated “or otherwise disciplined.” Large companies that did not pass the FTC’s moderation test would thus lose their Section 230 protections and risk lawsuits over content posted on their site, or lawsuits stemming from people removed from their site.
The blowback to Hawley’s bill, explained
Hawley said the ESICA was intended to “shine light onto what big tech companies do and force them to provide transparency about their content moderation practices.” But libertarian-leaning observers, conservatives, and many others have pointed out that the vague language of the legislation, intent on ending censorship, would essentially create a new Fairness Doctrine and make it harder, not easier, for everyone to get to speak on social media — and perhaps lead to more censorship, not less. (And suffice it to say that this bill is very different from how many conservatives argued about the subject of content and censorship just a decade ago.)
As so often happens, the title of a bill communicates the opposite of the intent.— David French (@DavidAFrench) June 19, 2019
Hawley’s “Ending Support for Internet Censorship Act” would empower internet censorship, all from the government, according to vague definitions and standards.
What could go wrong?
First and foremost, there’s no blue-ribbon test for “political neutrality.” What I (or anyone else) might find “politically neutral” would almost certainly be found by someone else to be deeply partisan. And FTC commissioners, who, as professor Josh Blackman of the South Texas College of Law in Houston told me, “have no means to scrutinize the manner that algorithms operate,” would be just as unable to determine what could be considered “politically neutral” means of moderating as I am. Is saying, for example, that Donald Trump lost the popular vote in the 2016 election (a fact) a “politically neutral” statement?
This Hawley Bill to amend CDA 230 is wacky in a dozen little ways and in one huge way: It assumes there is such a thing as “political neutrality” and that the FTC can define and enforce what that is. https://t.co/Qy9I24c5K6— Daphne Keller (@daphnehk) June 19, 2019
That’s a tough ask for social media companies, meaning that their most likely response to Hawley’s bill, as the Washington Examiner’s Philip Klein argued last week, would be for them to get “more aggressive in taking down any vaguely political content, out of fear that it could put them in legal jeopardy” rather than risk failing a “political neutrality” test.
And Hawley’s bill is extremely vague, even on the basic tenets of what the legislation means or would do. For example, it doesn’t explain what it would mean for a social media company to “negatively affect a political viewpoint,” or what would even constitute a “political viewpoint,” given that neo-Nazism and jihadism are both “political viewpoints” that some social media users presumably view with sympathy. Would a Trump tweet denigrating a Democratic presidential candidate be considered to be “negatively affecting” a political candidate? What about a Joe Biden tweet about Trump? And, importantly, how would this legislation function in a world where, say, Bernie Sanders is president and the FTC is under the control of Democrats? What would be judged as “negatively affecting” a political viewpoint then?
I spoke with Mike Masnick, editor of the technology website Techdirt. He told me the bill would offer tech companies three very bad options: Websites could accept not having 230 immunity and moderate nothing (a practice not even the neo-Nazi forum Stormfront abides by); accept not having 230 immunity and block everything that could even be remotely objectionable; or go through the “the extraordinarily political process” of convincing four out of five FTC commissioners to grant them 230 protections.
So it’s no wonder that many who oppose the bill most vociferously are libertarians, or libertarian-leaning. Republican Rep. Justin Amash tweeted that the bill, which would inject the power of the federal government into how social media companies do business (a practice that conservatives, at one time, opposed), would “empower the one entity that should have no say over our speech to regulate and influence what we say online.”
This legislation is a sweetheart deal for Big Government. It empowers the one entity that should have no say over our speech to regulate and influence what we say online. https://t.co/IMtBvlKkfY— Justin Amash (@justinamash) June 20, 2019
And they’ve been joined by many other libertarian-minded conservatives, like National Review writer David French and former FTC Commissioner Joshua Wright, who point out that Hawley’s bill “quite literally injects a board of bureaucrats into millions of decisions about internet content,” adding that the bill would “suppress” consumer preferences in favor of the arbitration of the FTC.
The most obvious point — one @BerinSzoka has emphasizes — is that a “Fairness Doctrine” for the internet is a bad idea. And the bill quite literally injects a board of bureaucrats into millions of decisions about internet content. This is central planning. Full stop.— Joshua Wright (@ProfWrightGMU) June 19, 2019
Why the bill is bigger than the bill
But to supporters of Hawley and his legislation, the purpose of the bill is far larger than the text of the bill itself. They support, if not the letter of the law, at least the spirit. They believe the fight over social media is about “whether all Americans can freely argue their politics in public” (and “whether or not Republicans ever win another major election in America.”)
For example, while National Review writer Robert VerBruggen said the ESICA has “obvious First Amendment problems and gives unelected bureaucrats way too much power over private companies,” he nevertheless said that he was “grateful to [Hawley] for at least starting the conversation.”
And James Poulos, executive editor of the Claremont Institute publication the American Mind, told me that as Americans have changed, so should the rules governing America’s internet: “Reopening this issue is overdue and should be welcomed, and Americans should not be frightened by the prospect of doing the real work of deliberative representative government that sorting this all out requires.”
This isn’t coming out of nowhere. Some on the right, like Josh Hammer, editor-at-large at Daily Wire, have grown increasingly concerned about the “deplatforming” of conservatives on social media sites.
“Conservatives could theoretically merely voice support to a market-based solution wherein lower barriers to entry encourage competing platforms to emerge, [but] the reality is that such a ‘solution,’ in the context of tech behemoths like Google and Facebook, is fanciful and completely unrealistic,” he told me last week.
It is not government overreach to demand that Silicon Valley tech giants disclose their censorship algorithms in exchange for continuing to receive CDA Sec. 230 immunity.— Josh Hammer (@josh_hammer) June 6, 2019
At its base, the idea of regulating a private business into political compliance seems inherently unconservative. Rather than urging conservatives to start their own social media companies or websites, some conservatives like Hawley are arguing that Google and Facebook are too big to challenge, and thus need to be regulated to ensure their fairness. The debate over social media regulation is part of a larger argument taking place among conservatives over whether the government could — or should — be used to promote the public good, though the definition of “public good” is left to be determined.
That’s why some of those who support Hawley’s bill don’t particularly care whether such legislation is “conservative.” They believe that conservatism is at war with the left. And in their view, if the left would resort to, say, forcing a bakery to bake a cake for a same-sex wedding, then the right shouldn’t “retreat into proceduralism.” Rather, the right should punch back, wielding the power of the federal government, which is, for now, under Republican control.
Right-liberals continue to believe in the fantasy that, if the Right forbears from pursuing substantive goods, the Left will do the same. This is rarely if ever the case. Rather, the Right’s retreat into proceduralism is viewed as weakness and lack of conviction. https://t.co/yn0S5MZUuW— Chateaubriand ن (@Chateaubriand__) June 19, 2019