Linkwrap on Sen. Hawley’s Bill Attacking Section 230

As you probably saw, Sen. Josh Hawley introduced a new bill, “Ending Support for Internet Censorship Act,” targeting Section 230. The associated press release. Like most Congressional bill names, the title is a complete misdirection. Of course private entities aren’t engaged in Internet “censorship.” Perhaps a more accurate title for this bill would be “Creating Internet Censorship Act.”

I don’t have time today to write up my analysis of the bill, but I’ll do so soon. In the interim, I can confirm that there is absolutely nothing meritorious or salvageable about the bill, but I’m unsure if the drafters ever had those goals. To tide you over until I get my thoughts together, here’s what some other folks are saying:

NetChoice, Sen. Hawley Has a Bill That Could Put the KKK in Your Newsfeed

This bill effectively prevents platforms from removing any political content, since that could make them liable for lawsuits over any user’s posting. The stated goal of Hawley’s bill is to reduce anti-conservative bias by platform moderators, but would actually turn our most popular social media sites into extremist hubs like 8-Chan.

Statement from Internet Association:

This bill forces platforms to make an impossible choice: either host reprehensible, but First Amendment protected speech, or lose legal protections that allow them to moderate illegal content like human trafficking and violent extremism. That shouldn’t be a tradeoff.

Statement from Engine:

Hawley’s bill reflects a total lack of understanding of how Internet platforms work. Constraining websites’ ability to remove objectionable content will result in the proliferation of hate speech, misinformation, terrorist content, and other content that no responsible Internet platform wants on their site.

To protect a diversity of speech online—and a diversity of platforms to host that speech—Congress should defend the current legal framework from these kinds of attacks over perceived political bias.

CCIA Warns Section 230 Bill Sets Up Government Censorship Of Online Speech; Less Freedom For Internet Sites To Remove Extremist Content

Fans of the fictitious ‘1984’ novel would no doubt appreciate the ludicrousness of a so-called anti-censorship bill that would require companies to get government approval to censor nefarious content — or face legal liability. This is an unbelievable disregard for the essence of the First Amendment and attempt to overlay a lens of partisan politics over the communications of millions of Americans.

If Congress is serious about tech companies doing more to remove hate speech and illegal content online, putting new restrictions on the legal protection that allows them to do that would be ill-advised. CCIA has spent decades fighting internet censorship regimes around the world, alongside US diplomats. It would be disappointing to see the country that has been a leader against restrictive regimes create its own government-regulated regime to oversee the political correctness of internet content.

At a time when white nationalists are stealthily seeding calls in the mainstream press for ‘viewpoint neutrality’, it’s troubling that the Senator would contemplate legislation forcing online services to carry these views. American businesses shouldn’t be forced to be neutral toward racism and extremism.

Statement from Sen. Wyden:

Senator Hawley has written a bill to deputize the federal government as the Speech Police in flagrant violation of the First Amendment. This bill would essentially force every platform to become 4chan or 8chan rather than maintain some basic level of decency.

On top of that, it looks to me like Senator Hawley’s office hasn’t even read the statute he’s trying to change.  Nothing in Section 230 shields companies for making illegal posts, or from violations of federal criminal law.  What CDA 230 actually does is enable private sector companies to take down inappropriate third-party posts without incurring liability.  It is designed to protect private sector companies from floods of nuisance lawsuits, the sort that kill innovation in its infancy.  The old Republican party fought tooth and nail for this sort of protection, but the party of Donald Trump clearly believes that lawyers and bureaucrats should tell private companies how to make clearly private business decisions.  The drive by Republicans to eliminate the autonomy of large private firms is extremely disturbing.

TechFreedom, Hawley Proposes a Fairness Doctrine for the Internet

the bill would give politicians a gigantic regulatory hammer to use against Big Tech — and transform the FTC overnight into the most politicized regulatory body in Washington. Sadly, that seems to be the point

TechFreedom’s Berin Szoka’s 2018 Testimony:

Government May Not Require Speakers to Give Up Their First Amendment Rights in Exchange for a Benefit, Including Section 230 Immunity.

Senators Cruz and Graham seem to be arguing, instead of mandating the Fairness Doctrine for online platforms, why could not the government simply require it as a condition of receiving the protections of Section 230 from liability for third party content?

Courts have generally held that requiring speakers to give up their First Amendment rights in exchange for a privilege (be it Federal funding or any other type of Federal benefit) still triggers First Amendment scrutiny and have generally struck down such conditions as unconstitutional. For example, in FCC v. League of Women Voters, 468 U.S. 364 (1984), the Court declined to revisit the scarcity rationale of Red Lion (but did reiterate that the FCC was free to do so); it did, however strike down, as an unconstitutional condition, the requirement that recipients of grants from the Corporation for Public Broadcasting refrain from all editorializing:

In sum, § 399’s broad ban on all editorializing by every station that receives CPB funds far exceeds what is necessary to protect against the risk of governmental interference or to prevent the public from assuming that editorials by public broadcasting stations represent the official view of government. The regulation impermissibly sweeps within its prohibition a wide range of speech by wholly private stations on topics that do not take a directly partisan stand or that have nothing whatever to do with federal, state, or local government.79

Many other cases illustrate the same point: whether imposed through mandate or through condition upon receipt of a privilege, the government would have to meet the exacting standards of First Amendment review. As the Court noted in 1972:

For at least a quarter-century, this Court has made clear that, even though a person has no “right” to a valuable governmental benefit, and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interest, especially his interest in freedom of speech.80

While most such cases focus on conditioning eligibility for taxpayer subsidies, the court recognized that it applies to other privileges, such as employment and, most similar to the legal immunity conferred by Section 230, tax exemptions.81 “The principle is more general than just trading a constitutional right in exchange for money. Professor Larry Tribe summarized the case law thusly: “government may not condition the receipt of its benefits upon the nonassertion of constitutional rights even if receipt of such benefits is in all other respects a ‘mere privilege.”82

79 See FCC v. League of Women Voters, 468 U.S. 364 (1984).
80 Perry v. Sindermann, 408 U.S. 593, 597 (1972).
81 Id. (citing Sherbert v. Verner, 374 U.S. 398, 374,404-405 (1963)).
82 L. TRIBE, AMERICAN CONSTITUTIONAL LAW 510 (1st. ed. 1978).

Three short essays of mine that are topical: