White House

Trump’s Illiberal Internet Fairness Doctrine

President Trump speaks in the Oval Office at the White House in Washington, D.C., April 24, 2020. (Jonathan Ernst/Reuters)
His Section 230 executive order would circumvent the legislative branch and encourage the chilling of speech.

Donald Trump, angered by a recent Twitter fact-check, is reportedly going to sign an executive order that tasks the FCC with “clarifying” regulations under Section 230 of the Communications Decency Act, a federal law that protects online platforms from liability for the things posted by third-party users.

No one should be fooled. This would be an Obama-style executive abuse, meant not to “clarify” but to circumvent the will and intent of the legislative branch for partisan reasons. Section 230 wasn’t passed to regulate fairness or neutrality of political speech on platforms — a nebulous and unenforceable demand, even if it had been — but to allow websites to deal with online indecency.

In effect, Section 230 has restrained the kind of litigiousness that creates risk aversion and makes things like a free and open Internet impossible. Minimal regulatory oversight of the Internet has fostered robust discourse, the kind that would have been unimaginable to someone passing an Internet bill back in 1996. Yet, conservatives, constantly — and rightly — grousing about government overreach want to hand more regulatory power to the state.

“Republicans feel that Social Media Platforms totally silence conservatives voices,” Trump tweeted the other day. “We will strongly regulate, or close them down, before we can ever allow this to happen. We saw what they attempted to do, and failed, in 2016. We can’t let a more sophisticated version of that happen again.”

What happened in 2016? Social media provided Trump with the power to bypass traditional media and speak directly to the American people. During his presidency, social media afforded Trump the ability to contest Russia-collusion accusations and other charges without having his words churned through the usual filters.

It is likewise ridiculous to contend that “conservatives” been “totally silenced” when, in many ways, Twitter has given them their biggest platform ever. Offhand, I can think of a half-dozen online personalities who have amassed more than a million followers. The only right-wingers with similar audiences in the mid-90s were radio talk-show hosts. Which is why liberals spent years arguing for “Fairness Doctrines” to regulate speech equity.

Reportedly, Trump’s executive order will also empower the White House Office of Digital Strategy to collect complaints of “online censorship” and submit them to the Department of Justice and the Federal Trade Commission.

What right does the executive branch of the United States government have to collect speech complaints? What does “censorship” even mean when it relates to a private company? Is a fact-check by Twitter an act of “censorship?” Is shutting down a Nazi troll account or a Chinese propaganda account an act of censorship? The administration risks creating new methods to chill speech without benefiting open debate.

After all, when was the last time government intervention made speech more free or fair? Have conservatives forgotten that Citizens United was a decision sparked by bureaucrats who used existing election laws, passed in effort to ensure more “fairness,” to ban political speech? Have they forgotten that how easily IRS officials tasked as arbiters of that fair speech can abuse their power?

Maybe they’ll remember when Attorney General Kamala Harris is overseeing the White House Office of Digital Strategy and regulating online speech.

To some extent, Jack Dorsey is bringing these difficulties on himself by dispensing with neutrality. Twitter is now fact-checking debatable propositions by the president. The Twitter chief executive says that he’ll continue “to point out incorrect or disputed information about elections globally,” but what will the standard be? Chinese government accounts run rampant on Twitter spreading all kinds of dangerous misinformation. Joe Biden regularly tweets incorrect or disputed information about his electoral adversary. Allowing those questionable tweets to exist without a fact-check must mean Dorsey endorses their veracity.

Don’t get me wrong. I’m not suggesting Dorsey ban Communist propaganda from his platform, since there are thousands of accounts debunking those lies. I will always prefer open debate to the policing of speech. But if you’re going start engaging in targeted “factchecks,” the people targeted are inclined to push back.

Conservative frustrations with tech companies are not without merit; I’ve written about such complaints for years. Whether the executive order turns out to be toothless or not, the impulse to empower the state — and by executive order — to regulate “fair” interactions is an illiberal one.

Even if Republicans such as Josh Hawley are successful in removing liability protections for social media platforms through legislative means, it will do nothing to engender more speech. (It should also be noted that Hawley has an ally in former vice president Biden, who, in an interview earlier this year with the New York Times, argued that Section 230 “immediately should be revoked” as Facebook “is propagating falsehoods they know to be false, and we should be setting standards not unlike the Europeans are doing relative to privacy.”) Stripping Twitter and other social media of liability protections is likely to make them more inclined to censor speech, not permit it. Either these companies will have to pass a “neutrality” test imposed by the government, or they’ll simply take down as much controversial content as possible.

Trump, Biden, and Hawley all have varying reasons for wanting to compel social media to regulate speech. But whoever ends up obtaining and using the power, it’s the users who will ultimately lose.

David Harsanyi is a senior writer for National Review and the author of First Freedom: A Ride through America’s Enduring History with the Gun

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