Republican Sen. Josh Hawley likes to portray himself as a defender of the First Amendment. He has, for instance, condemned an alleged lack of free speech on college campuses and supported the right of “crisis pregnancy centers” not to disclose their lack of a medical license. But on Wednesday, Hawley unveiled a bill designed to censor the internet—legislation that, if passed, would severely curb free expression on social media. It is probably unconstitutional and undeniably inane, a chillingly illiberal solution to an imagined problem.
Hawley’s bill takes aim at Section 230 of the Communications Decency Act of 1996, the often maligned yet widely misunderstood safeguard of internet freedom in the United States. Congress passed Section 230 to ensure that tech companies could moderate content on their websites without fearing constant lawsuits. The law grants these companies legal immunity when actionable or illegal material is posted on their websites. So, for instance, if I write a libelous post about you on Facebook, you can sue me, but you can’t sue Facebook for hosting my statement.
This rule gives tech companies a shield that traditional publishers don’t have. If I write a libelous op-ed about you in the New York Times, you can sue both me and the Times. Congress didn’t want the old rules of liability imposed on websites because, even in 1996, it was clear that internet moderators faced an influx of speech that was difficult to monitor. The Times pays careful attention to every op-ed it publishes. But message board–type websites—precursors to today’s social media—didn’t exercise such editorial control; many didn’t even prescreen users’ posts.
Troublingly, by 1996, courts had begun to impose liability on websites that did make an effort to monitor user content. One New York court reasoned that a website was liable for users’ defamatory posts because it attempted to moderate them; by exercising editorial control, it had become a more traditional publisher akin to the Times. This decision had a perverse effect: If a website made no effort to moderate users’ speech, it might escape liability, but if it tried to be responsible and deleted questionable content, it opened itself up to lawsuits. Section 230 put a stop to that quandary, empowering tech companies to moderate content without fear of legal action.
Now Hawley wants to eliminate this immunity for big tech companies that have, to his mind, abused it. His bill is meant to punish Facebook, Twitter, Google, and other new-media giants for their ostensible discrimination against conservatives. This alleged bias, a frequent Republican complaint, is unproven and unlikely to exist, but Hawley believes it is so rampant that nothing less than federal legislation can end it. His bill would attack Section 230 immunity for new-media companies with more than 30 million monthly users in the U.S. To maintain their immunity, these companies would have to prove to the Federal Trade Commission that they have not engaged in “politically biased moderation” over the past two years. At least four members of the five-member FTC would have to certify their compliance with this rule. Companies would then need to obtain recertification every two years or else lose their immunity.
What is “politically biased moderation”? Hawley’s bill defines it as “moderation” that is “designed to negatively affect a political party, political candidate, or political viewpoint,” or that “disproportionately restricts or promotes access to, or the availability of, information from a political party, political candidate, or political viewpoint.” Its definition of “moderation” includes the design of “an algorithm or other automated process,” though it does not explain how the FTC can determine whether an algorithm was programmed with political bias. Anyone who thinks they’ve been subject to such bias can file a complaint with the FTC.
The bill also bars any employee of a new-media company from “moderating information” with “an intent to negatively affect a political party, political candidate, or political viewpoint.” And if a company discovers that an employee has done so, it must publicize the information, then discipline or fire the offender. Thus, if a Facebook employee removes a protected post, she must be penalized, or her company will lose its immunity.
Hawley’s bill foists these hazy yet sweeping rules on tech companies, prohibiting them from removing “political” speech without clearly explaining what content qualifies as “political.” It then puts these companies at the mercy of four unelected political appointees at the FTC. As former FTC Commissioner Joshua Wright pointed out on Wednesday, these individuals have no expertise “in assessing the design or intent of algorithmic decisions over content,” much less “their disproportionate impact.” And tech companies will likely respond by currying favor with the administration to preserve their immunity.
This legislation suffers from two glaring First Amendment infirmities, vagueness and overbreadth. Can Facebook no longer censor posts endorsing the Nazis—which are, after all, a political party? What about posts endorsing the Nazis’ “viewpoint” about, say, Jews? What constitutes a “political viewpoint,” anyway? Do bigoted ideas promoted by the National Fascist Party count? How about violent ideas touted by the Communist Party? Facebook, Twitter, and YouTube would not only be forbidden from removing vile content; they would also be barred from creating an algorithm that disfavored abhorrent speech. How could any company establish compliance with these incredibly murky restrictions except to forgo moderation altogether?
True, Hawley’s bill does not directly punish tech companies that fail to comply with his guidelines. Instead, it strips these companies of immunity unless they play ball, subjecting them to crippling lawsuits that could put them out of business. But this indirect penalization still raises constitutional concerns. The Supreme Court has limited Congress’ ability to impose conditions on a government benefit—most notably, by forcing beneficiaries to comply with a speech code. Hawley’s bill arguably runs afoul of this bar on “unconstitutional conditions,” compelling tech companies to surrender their own free speech to retain Section 230 immunity. Currently, these corporations hold a First Amendment right to remove speech with which they do not wish to associate. Hawley would demand that they give up their freedom of expression or risk being sued into submission.
The strongest legal support for Hawley’s bill lies in Red Lion v. FCC. In that case, the Supreme Court upheld the “fairness doctrine” for radio stations, obligating broadcasters to cover each side of important matters. But Red Lion was premised on the fact that there are a limited number of radio frequencies; it therefore serves the public interest to condition broadcast licenses on a station’s “willingness to present representative community views on controversial issues.” There is no such concern with the internet, no technological limitation on the number of websites that justifies the government’s imposition of “fairness.”
Even if you think big media companies are genuinely biased against conservatives, this bill cannot possibly be the solution. It would empower bureaucrats to interfere in the marketplace to punish tech companies that violate some inscrutable speech code—hardly a conservative proposition. The result would render a large swath of social media unusable, overrun by bigots and trolls and extremists who flood our feeds with repugnant content that masquerades as a “political viewpoint.” Hawley’s cure is worse than the putative disease because his diagnosis is incorrect: There just isn’t anything wrong with Section 230. There are many problems with the internet today, but a lack of free speech isn’t one of them.