It’s often the case in Washington that the title of a bill communicates the exact opposite of its content or effect. Think, for example of the Affordable Care Act — a title that seemed almost laughable in the face of skyrocketing insurance premiums. Now we have the Republican version of a deceptively named bill, Missouri senator Josh Hawley’s Ending Support for Internet Censorship Act.
In reality, it’s a bill that would inject the federal government directly into the private social-media business and grant it enormous power over social-media content. It would enable public censorship in the name of limiting private control.
The mechanism is pretty simple, it would require a large “provider of an interactive computer service” to obtain a certification from the Federal Trade Commission that it “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” before it could enjoy the benefits of Section 230 of the Communications Act.
Section 230 contains two key provisions. First, it states,
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
This means that neither Facebook nor my local newspaper is liable for the content I direct-post on their sites — on a news feed (Facebook) or a comment board (newspaper.) Critically, this provision was not drafted for the purpose of protecting interactive computer services only so long as access to their platforms was free and unregulated.
The second key provision says,
No provider or user of an interactive computer service shall be held liable on account of 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.
In other words, it specifically protects the ability of websites such as Facebook or Twitter or your local newspaper to moderate user content without abandoning the safe harbor.
Section 230 codifies online a concept we easily understand in the offline world. For example, if you attend a congressman’s town-hall meeting, and he instructs his audience that their comments are limited in time, that they cannot use profanity, and they should remain on topic (moderating the platform), does that transform their speech into his speech?
If I’m in a public university classroom, where the professor can rule discourse with an iron fist, are my comments his comments — even if he shuts down students he doesn’t like or imposes strict rules of civility and decency?
But there’s a difference between student-classroom comments and a college newspaper publishing a student symposium, where it selects, edits, and fact-checks the submissions. These distinctions have become so obvious over time that we scarcely discuss them, and these distinctions exist online as well. In many ways, Section 230 — far from creating a “special break” for computer services — codifies common sense. My Facebook comment is fundamentally my speech.
Hawley wants to replace common sense with a legal fiction, making Facebook responsible for user comments unless it can satisfy an extraordinary condition — it has to prove to the Federal Trade Commission by clear and convincing evidence that it doesn’t moderate content in a manner “designed to negatively affect a political party, political candidate, or political viewpoint” and that its moderation doesn’t “disproportionately restrict or promote access to, or the availability of, information from a political party, political candidate, or political viewpoint.”
Hawley’s standard is most assuredly not the viewpoint-neutrality standard seen in First Amendment case law. It’s a carnival funhouse version that would invite an enormous amount of bureaucratic meddling. For example, conservative sites and posts often do very well on Facebook, in part because of its older user base and partly because conservative Facebook users have gotten quite good at creating viral content. Will a Kamala Harris administration decide that disproportionate conservative success violates political neutrality?
Laws that purport to regulate First Amendment–protected speech bear a special burden of precision and clarity. They have to clearly explain what is prohibited and permitted. Vague or overbroad laws violate the Constitution in part by failing to provide fair notice of government standards. Hawley’s bill, as written, is extraordinarily vague. Terms such as “disproportionate” are very hard to define. Disproportionate to what? User percentages? Population percentages? User engagement? The standard is extraordinarily malleable.
I have long urged social-media companies to voluntarily adopt First Amendment–based moderation standards. The reasons that it should be voluntary are both constitutional and pragmatic. The First Amendment grants private organizations wide birth in formulating their content creation and moderation rules.
Pragmatically, a First Amendment standard not only helps protect viewpoint neutrality on matters far beyond politics, it also draws on centuries of American experience in protecting free expression while also protecting individuals from concrete harm (see, for example, the recent Oberlin verdict). And the voluntary nature of the program would allow each social-media company to tailor its framework to the company’s specific needs. Not all platforms have the same customer base or business model.
But this requires persuasion, not coercion. And when coercion locks in — especially when that coercion is tied to constitutionally suspect broad and vague policies that delegate immense powers to the federal government — conservatives should sound the alarm. One of the best ways to evaluate the merits of legislation is to ask yourself whether the bill would still seem wise if the power you give the government were to end up in the hands of your political opponents. Is Hawley striking a blow for freedom if he ends up handing oversight of Facebook’s political content to Bernie Sanders? I think not.
Defending social-media companies from government overreach is not the same thing as defending the merits of their moderation choices. Social-media companies have created vague standards, applied them in sometimes-biased fashion, and have struggled time and again to maintain any real consistency. There is need for reconsideration and reform, but not every reform has to come from Washington. Sometimes you have to convince people to change.