Senator Hawley released a new bill today that would force social media companies to prove that they are neutral if they want to continue enjoying immunity protections. In other words, if they don’t want to be held liable for content posted by users, they need to prove they aren’t censoring one political side of the aisle.
DAILY CALLER – Hawley introduced the Ending Support for Internet Censorship Act, which dramatically amends a law providing internet companies broad immunity from being sued for content others post on their websites. His bill, if it becomes law, would provide big tech companies such immunity only if they can show they are politically neutral.
“With Section 230, tech companies get a sweetheart deal that no other industry enjoys: complete exemption from traditional publisher liability in exchange for providing a forum free of political censorship,” Hawley wrote in a statement announcing the bill. “Unfortunately, and unsurprisingly, big tech has failed to hold up its end of the bargain.”
He was referring to Section 230 of the Communications Decency Act, which was passed in 1996 when the Internet was young and growing. Congress was concerned at the time that subjecting the fledgling platform to the same civil liability as all other businesses would stymie growth.
The bill applies only to companies with more than 30 million active monthly users in the U.S., or that have more than $500 million in global annual revenue. Big tech companies would have to prove their neutrality to the Federal Trade Commission and reapply for immunity every two years, according to a copy of the legislation.
Ted Cruz has referenced these immunity protections as well in the past and has also suggested that companies shouldn’t enjoy them if they are censoring conservatives.
But not everyone agrees that this will result in ending censorship of conservatives. Phillip Klein argues that it could end with more censorship if the protections are repealed:
DC EXAMINER – Under Hawley’s proposal, the immunity would be ended, but social media giants could apply to the Federal Trade Commission every two years to obtain a certificate of immunity if they can demonstrate that they are removing content on a politically neutral basis.
However, it seems to me that if social media firms are worried about being liable for user generated content, they’re likely to be more aggressive in taking down any vaguely political content, out of fear that it could put them in legal jeopardy. They aren’t likely to respond by being more open to controversial posts from all sides.
To the extent they allow news or political content, it’s likely to come from legacy media who the tech giants know themselves have to guard against the potential of lawsuits.
Lawyers will no doubt take some time to look at whether the Hawley “certification” approach would pass constitutional muster. But from a policy perspective, it’s awful.
Partisan control of the FTC changes from administration to administration, and there’s no objective criteria for determining political neutrality. So this would leave decisions about political content on social media up to the arbitrary judgment calls of federal regulators.
I get that conservatives are frustrated about bias shown in decisions to ban or suspend users, but this response would only lead to a more restrictive speech code.
I think the idea from Hawley is that social media companies will be forced to become neutral if they want to keep from being sued. But what happens if they fail to do so and are thus forced to start nixing content that they could be liable for?
Klein makes an interesting point, especially given the partisan nature of the executive branch. Under Democrat administrations social media companies may feel free to censor conservatives at will, while only becoming neutral when a Republican administration is about to be elected.