Content moderation on the internet is having a difficult moment. In response to various actions by Facebook, YouTube and Twitter — banning of conspiracy theorist Alex Jones and other extremists from their platforms, streaming of terrorist attacks over Facebook Live, claims by other conservatives that the platforms have “de-platformed” them for their views, and Russia-fueled misinformation in the 2016 election campaign — politicians and commentators of all political persuasions are calling for internet platforms to assume more responsibility over the content they host. The Big Tech backlash is in full swing.
As much as Facebook and Twitter themselves, the target for this ire is the Communications Decency Act’s Section 230, which was enacted in 1996 and immunizes internet websites and applications from liability for user content. Section 230’s safe harbor treats social media companies differently from other re-publishers of content like newspapers and broadcasters, which have long been liable for anything they publish. Accordingly, Section 230 is an impediment to any governmental effort to regulate social media content.
Into this now steps Missouri Sen. Josh Hawley. Republican Hawley — a Yale-educated lawyer who, along with other self-appointed internet user defenders, like fellow Sen. Ted Cruz, either should know better or does but doesn’t care — proposed a bill last month called the Ending Support for Internet Censorship Act. This bill would revoke Section 230 immunity for social media companies that fail a Federal Trade Commission certification audit to determine whether their content moderation policies are politically neutral with respect to any political party, candidate, or viewpoint.
Anyone who calls himself a conservative should be embarrassed to be associated with this idea. As an initial matter, the legislation ignores the fact that a publisher’s decisions as to what to publish are protected First Amendment speech.
If a newspaper chose only to publish op-eds that criticized President Donald Trump, would any elected official believe that the First Amendment would permit the government to revoke the special mailing privileges the newspaper receives from the U.S. Postal Service? And can you imagine the outrage from the right if the House of Representatives opened an inquiry into the newspaper’s practices? Or if a similar law was proposed for cable news stations — wouldn’t the results be disastrous for both Fox News and MSNBC?
The point is no less true for social media companies. Facebook and Twitter are free to moderate user content on any basis they see fit. Those policies, like the hypothetical newspaper policy, are themselves protected speech. If you don’t like it, it’s a big internet; find another website or app to host your speech, or host it yourself.
The ability of social media companies to disseminate or censor our speech is unprecedented — as the U.S. Supreme Court called it, social media is the “modern public square” that serves as a “principal source for current events.” But the actual First Amendment rights of platforms cannot be sacrificed to protect rights of access that the platform’s users claim but don’t exist. We can all hope that neutrality will guide the hands of power, but the government cannot command neutrality from the powerful.
Additionally, the Supreme Court has consistently held, under its “unconstitutional conditions” doctrine, that the government cannot place the receipt of a benefit upon the waiver of a constitutional right. This is exactly what Hawley’s legislation does. It tells social media companies to regulate user content in a politically unbiased way, or they will be deprived the benefit of a valid law.
If the government cannot, consistent with the First Amendment, directly tell Facebook and Twitter how to moderate content — and there is no doubt that it can’t — then Congress cannot attempt to achieve the same result indirectly by conditioning a legislative right on the companies’ adoption of content-moderation policies that the government prefers.
There are good arguments for and against re-publication immunity for social media companies. Some argue that sites like Wikipedia and Yelp would not exist without Section 230; others believe the cost of complete social media immunity for user content has come in the form of more terror, hate, fear and shame.
Hawley, or any other legislator, is more than free to propose eliminating Section 230 immunity entirely. But the rights private individuals and companies are granted by law cannot be conditioned on government approval of what we say and how we say it. Thankfully, the First Amendment stands in the way.
Enrique Armijo is a law professor at Elon University School of Law in North Carolina and an affiliated fellow of the Yale Law School Information Society Project.