New Josh Hawley bill proposes a fairness doctrine for Big Tech

A terrible idea but one in keeping with the spirit of the times. Whether the bill is unconstitutional or (giggle) un-conservative doesn’t matter. Whether it will backfire and cause more problems than it solves doesn’t really matter either. What matters is delivering the adrenaline rush of punching an enemy of the right square in the face. Hawley understands the Trumpist ethos. In fact, I’m treating this as a sort of unofficial announcement that he’s running for president in 2024 and intends to compete aggressively for Trump’s base in the primaries.

I have faith, though, that Ted Cruz can come up with an even worse pander in time. Stay tuned.

Hawley’s target here is Section 230 of the Communications Decency Act, which I mentioned a few nights ago in this post about a recent SCOTUS ruling. Section 230 says that Internet platforms can’t be held legally responsible for material posted by their users. Righties resent the fact that the likes of Facebook and Twitter enjoy that immunity despite sometimes demonstrating bias against conservatives in how they moderate content. One way to solve that bias potentially is to claim that social media behemoths now play such an outsized role in public discourse that they should be treated as “state actors” for First Amendment purposes, which means they’d be barred from discriminating against certain viewpoints when moderating content. But the Supreme Court seemed to blow up that argument this week, reaffirming (in the context of a private company operating public access stations in New York City) that hosting speech by members of the public doesn’t transform a private entity into a quasi-public one.

Hawley’s taken a different approach. Instead of gambling on a longshot constitutional argument, he’s targeting Section 230 via statute. It’s time to amend the law, he says, and make the platforms’ immunity conditional on their neutrality in moderating content. I salute him for at least acknowledging that the law as written doesn’t already require that. It’s become a minor myth on the right advanced by the likes of Cruz that Section 230 in its present form demands that tech giants remain “neutral platforms” in how they filter content or else they lose their legal protection. That’s just not true, and the fact that Hawley wants to clarify it by amending the statute to explicitly require neutrality suggests that he realizes it.

What Senator Hawley’s bill does

Removes automatic immunity under Section 230 from big tech companies

Gives big tech companies the ability to earn immunity through external audits
— Big tech companies would have to prove to the FTC by clear and convincing evidence that their algorithms and content-removal practices are politically neutral
— The FTC could not certify big tech companies for immunity except by a supermajority vote
— Big tech companies would be responsible for the cost of conducting audits
— Big tech companies would have to reapply for immunity every two years

Preserves existing immunity for small and medium-sized companies
— The bill applies only to companies with more than 30 million active monthly users in the U.S., more than 300 million active monthly users worldwide, or who have more than $500 million in global annual revenue

What do you have there? For starters, you have a much larger federal bureaucracy and much greater government influence over online speech. You also have a swampy new incentive for Big Tech to cozy up to the administration that’s in power in hopes of convincing the FTC to have a forgiving standard of “neutrality.” Which is to say, you’re not necessarily curing the problem of bias in content moderation. Big Tech might be more willing to discriminate against conservatives when Democrats occupy the White House in the belief that a Democratic-run FTC won’t be sticklers about how they filter content so long as it benefits the left’s political agenda. Former FTC commissioner (and conservative) Joshua Wright thinks it’s an awful idea:

“Essentially, Hawley wants to revive the old Fairness Doctrine,” writes Elizabeth Nolan Brown at Reason, a “truly Orwellian tack of trying to convince conservative internet users that taking away protection for online speech will somehow allow them to speak more freely.”

In reality, Big Tech is likely to say “to hell with it” and hedge against an unfavorable decision by the FTC on legal immunity by erring on the side of filtering out all but the most anodyne political content. Hawley’s bill won’t protect MAGAPatriot1776’s right to post on Twitter without fear of being banned; it’ll convince Twitter to ban him and lefty counterparts at first sight so that they’re not forced to decide how to filter hyper-partisan political postings in a way that might look like bias when it comes time for FTC review. “To the extent [platforms] allow news or political content” under Hawley’s regime, notes Philip Klein, “it’s likely to come from legacy media who the tech giants know themselves have to guard against the potential of lawsuits.” Hawley’s going to make it safe for Facebook to post stuff from the New York Times but not from right-wing sites.

The irony is that that’s what Section 230 was designed to avoid. Legal immunity for platforms isn’t there to protect Mark Zuckerberg, it’s to encourage Zuckerberg to provide a platform for the public by reassuring him that he won’t be held liable when the public misuses it. “Section 230 simply codifies the common-sense notion that you’re not responsible for my criminal speech just because you sold me a product that helped me say it,” notes Andrew Egger, who’s also not a fan of Hawley’s bill:

Reading the bill, every new paragraph sends the eyebrows higher: For big tech companies to be permitted to re-access the baseline legal protections afforded them by Section 230, an entire new wing of the Federal Trade Commission is to be established to audit these companies for political neutrality. The guidelines for how these newly hired bureaucrats are to make these decisions are hilariously broad: nothing in a company’s algorithms or content moderation practices is permitted to be “designed to negatively affect a political party, political candidate, or political viewpoint,” or to restrict “information from a political party, political candidate, or political viewpoint.” The bill largely leaves the sausage-making for how this is exactly to be accomplished up to the new bureaucracy—the sort of policy-making deference to the executive branch that congressional Republicans like Hawley typically decry. Or used to, at least.

What’s most distressing about all this, however, isn’t any particular provision in the bill at all. It’s in the mindset behind it, which has absolutely no problem with mammoth expansions of federal and executive power to address any momentary political problem which strikes a lawmaker’s fancy.

Correct. Two seconds’ thought leads one to realize that if a major tech platform lost its legal immunity re: third-party material, it would have to shut down immediately to protect itself from financial ruin. The sheer volume of daily posts at social media sites ensures that not everything that’s potentially actionable can or will be filtered before it goes live. Passing the Hawley bill as-is would either tank Big Tech or would lead the FTC to make it very easy to clear the “neutrality” bar in content moderation so as not to scare platforms into shutting down. But I don’t know — maybe tanking the industry is the point here. Says Gabe Malor, “The fantasy claim that [Section] 230 was created only upon the promise or expectation that internet companies would be politically neutral fits perfectly into Trumpism’s victim mentality. They believe they are owed something and its denial therefore is a personal injury.” Hawley’s bill is redress for that injury, smashing the tech lords by holding them to a legal standard they likely can’t meet and which might ultimately cause them to cease operations. It’s pure revanchism, even at the risk of destroying profitable platforms which most people mostly enjoy using. As I say, Hawley understands Trumpism. The GOP after Trump is likely to be worse than what we have now.

If he wants to make social media more hospitable to righties, he should dial up Rupert Murdoch or Peter Thiel or whoever and nudge them about building their own Republican-friendly social media platforms. Fox News and talk radio — and the president of the United States — could promote them. That’s how “conservatives” used to address market demand, by encouraging supply, not new federal bureaucracies.