You don’t need a weatherman to know which way the wind blows…
-Bob Dylan, a long time ago
The winds of illiberalism are blowing strongly here and abroad and in both major political parties. What had seemed to be gusts and squalls signifying little prior to 2015 now threatens a major storm. Sen. Josh Hawley’s Ending Support for Internet Censorship Act, introduced yesterday, seems to be the latest potential disaster of this hurricane season.
Sen. Hawley won election to the Senate decrying bias against conservatives by online platforms. He now proposes to act to “correct” this presumed bias. Forty years ago, his job would have been easier. The federal government claimed ownership of the airwaves and the power to license their use by broadcasters. The Federal Communications Commission (FCC) awarded licenses to broadcasters that promoted the public interest not least in the “fairness” of their political coverage. Government officials used the leverage created by licensing to harass and censor political speech.
The federal government does not own the internet, so a new FCC seems unlikely. In fact, Congress has favored the private over the government in regulating the internet. In 1996, Congress decided to immunize internet companies against the actions of their users and to empower them to remove content for various reasons, including it being “objectionable.” The platforms could remove such material without liability “whether or not it was constitutionally protected.” Congress, not the courts, decided the First Amendment did not apply to private forums for speech.
Sen. Hawley and his allies argue Section 230 subsidizes social media. They also say that the companies originally agreed to moderate their platforms in a politically neutral way in exchange for such subsides. In fact, Congress decided social media, unlike publishers, could not control ex ante the speech of their users. Holding platforms to a publishing standard could encourage too much moderation of speech to avoid liability, thereby restricting the growth of this new industry. Congress also empowered the companies to remove speech to fight obscenity on the new medium. Section 230 has nothing in common with Congress deciding to subsidize growing (or not growing) various crops.
However flawed, the subsidy argument does get Sen. Hawley to a licensing regime for social media. Subsidies should be granted in exchange for something, and why not the original “political neutrality” Sen. Hawley claims the companies promised and failed to deliver? The license this time is called an “immunity certification” granted by the Federal Trade Commission for two years to large internet content providers. This certification establishes that an internet company “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.”
The meaning of those terms may matter less than the process established by the bill to certify this “political neutrality.” The companies must convince four out of five members of the FTC that their content moderation is not politically biased. That fourth vote will decide whether companies operating social media platforms are granted Section 230 immunity.
Absent that certification, a social media company could continue in business. It might avoid the liability related to suppressing speech by letting everything on the platform. But the companies don’t do that now, primarily for business reasons: many users would be repelled by a platform permitting extremism. Another response to losing “immunity certification” would be moderating too much; content moderators might suppress any speech that could lead to liability and without protections, this suppression itself would lead to more lawsuits. The result would be at best a boring service hostile to speech and again, unattractive to users. In other words, losing certification might well do lasting damage to the economic value of a platform. To avoid such losses, a company would have to do whatever is necessary for to gain that fourth vote (and certification) at the FTC. We should not give that much power over business and speech to a federal agency.
Sen. Hawley’s bill seeks to undermine an older American conservatism. Not long ago, the Reagan legacy spoke powerfully to conservatives. Of course, the Reagan administration ended the Fairness Doctrine and in general, supported markets free of government regulation. Some now believe that times have changed and the ideals of 1980 no longer should guide conservative thinking. If that was “then,” Sen. Hawley is definitely “now.” But if conservatives are turning their backs on timeless ideals like free markets and free speech, what could conservatism mean beyond political necessity and the rage of transient majorities?
One final point. Sen. Hawley’s bill might lead to a good outcome: in invalidating the law, the Supreme Court might recognize clearly that social media curation deserves strong First Amendment protections. On the other hand, we also might end up with a Red Lion decision for the internet, that is, a decision supporting state oversight of speech and business on social media. Far better for Congress to take up its constitutional duties with this bill.
Other free speech advocates reject this licensing of social media for many good reasons (see Eric Goldman’s collection of links). This debate is just beginning. We can thank Sen. Hawley for making its stakes abundantly clear.