OPINION

Beyond Section 230: Addressing the Causes of Online Censorship.

Why conservatives should change their tactics in the fight against Big Tech.

In recent years, the debate over Big Tech’s censorship of political speech has largely focused on Section 230 of the Communications Decency Act (CDA). Passed all the way back in 1996, the statutory provision was designed to encourage “a true diversity of political discourse” in the then-nascent medium of the internet. Now, Section 230 is increasingly seen as a tool enabling Big Tech companies to censor political speech without repercussion. Within the past six months, the Justice Department has proposed reforms to the section, Senator Josh Hawley has proposed two bills, and President Trump has publicly called for its repeal.

These actions are an escalation of a long-established pattern of censoring conservative and right-wing users and press outlets.

In a nutshell, Section 230 affords the “provider or user of an interactive computer service” liability protection for any information/content that was “provided by another information content provider.” “Providers of interactive computer services,” such as Twitter, Facebook, YouTube, and so on, are not treated as the “publishers” of the content published by users of their service, and so cannot be held liable for said content. To put it concisely, Section 230 places the liability on the creators of content itself, and not those hosting the content. The text of the bill argues that this would “offer a forum” for online discussion and remove incentives for aggressive moderation, as computer service providers do not have to be concerned with litigation over posts published on their sites.

However, as it pertains to political speech, this has not been the case. Politically-motivated censorship and biased curating of information by search engines and social media sites have become a dangerous epidemic, posing a fatal threat to free and open political discourse essential in a functioning democracy, and challenging the basic First Amendment rights of American citizens. Both Twitter and Facebook, along with a host of other social media platforms, have banned the President of the United States, as well as thousands of conservative and right-wing users and press outlets. Google and Apple have both refused to allow right-leaning social media platform Parler in their app stores, and Amazon Web Services has kicked Parler off its cloud hosting services. Salesforce has even gone as far as denying the Republican National Committee email services.

These actions are an escalation of a long-established pattern of censoring conservative and right-wing users and press outlets. Last year, Twitter censored publications as large as the New York Post, and YouTube banned all claims of widespread election fraud as well as alternative explanations for the origin of COVID-19. Big Tech is clearly taking its cues from the Democrat party line, and, judging by recent events, this trend shows no signs of stopping.

Facebook.

Facebook.

The harmful effects of online censorship are only exacerbated by the monopoly held by Big Tech over public discourse online. Just Facebook and Twitter account for a 70% social media market share in the United States, while Google possesses a whopping 87% search engine market share. By dominating online access to political news, information, and discussion, Big Tech exercises an inordinate amount of influence over public opinion. Politically-motivated censorship online, therefore, advantages certain political interests and promotes certain views to the detriment of others, molding public opinion according to particular narratives.

As Big Tech’s monopoly solidifies and its influence increases, conservative lawmakers have come to view Section 230 as the most viable inroads for combatting political censorship and, by extension, lessening Big Tech’s control over public discourse. The debate has largely centered around the question of whether or not Twitter, Facebook, and Google should enjoy the liability protections afforded by Section 230. Advocates of Section 230 reform argue that the favoring of certain political content over others is equivalent to a form of content creation itself, thus disqualifying tech companies from liability immunity; by editorializing content, Big Tech companies are effectively creating content.

[T]hese tactics would do little by way of addressing the systematic factors facilitating Big Tech’s censorship in the first place…

This argument is most notably espoused by Senator Ted Cruz. Cruz argues that tech companies’ terms of service, particularly the policies regarding “misinformation,” are “applied in a partisan and selective manner,” and that the selective application of policy means that tech companies are “engaged in publishing decisions.” In a lawsuit regarding its speech policies, Google has even referred to itself as a publisher, defending its censorship of political content under the “First Amendment protection for a publisher’s editorial judgments.” If social media companies are indeed “publishers” and not simply “service providers,” then, at least in Cruz’s view, these companies should be held liable for the content published on their sites.

Cruz is not alone in his reasoning. “There’s a growing list of evidence that shows Big Tech companies making editorial decisions to censor viewpoints they disagree with,” adds Senator Josh Hawley in support of one of his many Section 230 reforms, the Ending Support of Internet Censorship Act. Hawley’s Bill would remove Section 230 liability protections from tech companies that editorialized information in a politically biased manner. The Bill advances the popular notion of “political neutrality standards” that tech companies would have to meet in order to enjoy Section 230 immunity.

Though the attack on Section 230 liability protection seems to be the consensus strategy by lawmakers seeking to rein in Big Tech’s influence, it’s not the best one. The strategy essentially uses the threat of liability as a bludgeon, enabling lawmakers to make headline-grabbing demands of tech giants. Meanwhile, these tactics would do little by way of addressing the systematic factors facilitating Big Tech’s censorship in the first place: namely, outdated legislation and monopoly power. What’s more, the demands themselves are misguided, demanding “political neutrality” in moderation of political speech rather than reframing the problem as a First Amendment, civil rights issue, and not simply a liability issue.

Mark Zuckerberg.

Mark Zuckerberg.

PUBLIC FORUMS, NOT PUBLISHERS

The focus on outdated legislation like Section 230 in the fight against Big Tech has forced lawmakers to adapt unsuitable legal language—like “publishers”—to the unique nature of tech companies. The result is policy prescriptions that don’t actually address the real problem. For example, Hawley and Cruz categorize the selective and politically-motivated application of terms of service as “publishing decisions,” but by demanding that tech companies cease “discriminating when enforcing the terms of service,” they’re effectively tolerating and allowing for politically-neutral censorship. It’s easy to see how any political neutrality standard in censorship would be ripe for abuse. For example, one can imagine a scenario in which tech companies censor information that is incredibly harmful to certain political interests (such as the Hunter Biden leaks), but demonstrate political neutrality by censoring information less harmful to opposing interests. Hawley and Cruz would be better served to challenge the principle of censorship itself.

[P]olitically-motivated censorship should be regarded as intolerable…

In addition, the fixation on Section 230 largely neglects the elephant in the room: the First Amendment rights of Big Tech users. With the vast majority of public discourse now taking place on Big Tech platforms such as Twitter, Facebook, and Google, there’s a convincing and increasingly frequent argument to be made that these platforms constitute “public forums” in which speech should be protected under the First Amendment.  Defined by Justice Owen Roberts as places “used for purposes of assembly, communicating thoughts between citizens, and discussing public questions,” public forums are locations in which speech enjoys First Amendment protections. As Big Tech platforms clearly function as places for “discussing public questions,” I see no reason why they should not be considered public forums.

This view of social media has already been partially endorsed by the United States Court of Appeals for the Second Circuit, who ruled that President Trump’s Twitter account is a public forum, and that the blocking of critics is unconstitutional. Rather than trying to categorize Big Tech companies as “publishers,” it’s much more effective (and accurate) to simply define them as public forums, thereby drastically neutering their power to censor speech. Conservatives need to define tech censorship as the civil rights issue that it is, rather than getting into the weeds with half-measures like defining companies as “publishers.” Any politically-motivated censorship should be regarded as intolerable, and by framing tech censorship as a First Amendment violation, we are fighting for those rights.

Obviously, the decision as to whether or not Big Tech platforms are public forums is ultimately one for the courts, but an effective movement against Big Tech would force courts to answer this question. Should tech companies be forced to moderate content in accordance with the First Amendment, their ability to censor political content would be greatly reduced, and there would be actual consequences for their agenda-based moderation. Terms of service could still be abused through selective, politically-biased application, but limiting the avenues of censorship would ameliorate much of the problem.

Moreover, if Cruz and Hawley were to succeed in treating companies such as Facebook and Twitter as publishers of content, the unintended consequences for free speech would be disastrous. Removing liability protections would almost certainly result in more censorship, not less. Any content that could possibly be construed as defamatory would be censored, preventing the kind of unfettered discussion essential to productive political discourse and, if anything, further empowering Big Tech. By treating Big Tech companies as public forums, this problem is avoided.

Twitter.

Twitter.

COMBATTING BIG TECH’S MONOPOLY

The problem of online political censorship is only exacerbated by Big Tech’s digital monopoly. Though this market dominance obviously presents a slew of issues, extending far beyond politically-motivated content moderation, the effects of Big Tech’s monopoly on political speech are acutely felt. One company’s decision to ban certain information that is harmful to favored political interests, as is the case with Twitter’s censoring of the Hunter Biden story, has an enormous impact on political discussion and even elections.

Through monopoly power, Big Tech gains an almost unfathomable degree of control over what information the public consumes.

In many ways, tech companies are inherently prone to monopoly. The value of a social media platform increases in proportion to the size of its user base. This is known as a “network effect.” For this reason, a user cannot simply jump ship from Facebook or Twitter to a smaller competitor in the same way that they could patronize a local restaurant over a national chain, because the value of Facebook or Twitter is its size, which a smaller competitor cannot hope to match. This is true for search engines as well. The efficacy of Google’s search algorithms is in large part due to its enormous user base, offering Google an endless supply of user data that can be used to refine and improve Google’s algorithms. Couple this with Google’s vertical integration (control of hardware, software, web services, and search engines), and the way it prioritizes its own assets and advertisements in search results, and it’s easy to see why the market is as anti-competitive as it is.

Through monopoly power, Big Tech gains an almost unfathomable degree of control over what information the public consumes. By prioritizing certain political positions over others, and denying access to content on the basis of politics, Twitter, Facebook, and Google can effectively shape public opinion to suit particular political interests. This occurred most notably during the 2020 presidential election, with Twitter flagging all claims of election fraud and claims of a Trump victory, declaring such claims false on the basis of “expert” opinion; in effect, telling the public what is and what isn’t true. The danger of a multi-billion dollar social media company becoming the arbiter of truth is plainly obvious.

To combat Big Tech’s censorship, the breaking up of monopolies through new antitrust legislation and proper regulation is essential. As companies such as Facebook and Google are effectively conglomerates, there are a few natural fault lines. WhatsApp and Instagram, two companies acquired in their ascendancy by Facebook, could easily function as independent companies, and would serve as somewhat direct competitors to Facebook’s hegemony. A variety of Google’s products, such as Google Drive, YouTube, Chrome, and Chrome OS, could also stand on their own legs, and their divorce from Google would allow smaller companies to compete in their verticals. While Twitter is much more monolithic, its anti-competitive data sharing agreement with Facebook and Google grants it a significant competitive advantage, allowing it to maintain its monopoly against fledgling competitors. An antitrust move against Twitter would seek to address this incestuous relationship.

There are more radical solutions to the problem of monopoly. Some conservatives have suggested nationalizing Big Tech, arguing that, as these corporations cannot really be considered private companies given their function as state-chartered digital infrastructure, their impact on public discourse should be restrained by the federal government. Others have argued for a data-sharing mandate, reasoning that, because Big Tech derives its power from its monopoly on user data, sharing user data would give smaller competitors an even playing field. Though these solutions are not likely to materialize soon, they offer viable directions for conservatives in the fight against Big Tech.

Though lawmakers have offered a few antitrust proposals and lawsuits, legislative efforts against tech censorship have largely focused on Section 230, more or less avoiding the problem of monopoly and other core underlying issues such as the lack of updated legislation defining Big Tech companies as public forums. As a consequence, the resulting policy prescriptions are half-measures that fail to really address the root causes of censorship. What’s more, given Democrat control over the House and Senate for at least the next two years, censorship will most likely increase, and legislative relief is not likely to be forthcoming.

Conservatives should therefore look to the future. The fight against Big Tech will be difficult and protracted, and should be rightly understood as an issue of fundamental civil rights. It will not be won through a battle over Section 230. Conservatives should instead adopt a long-term advocacy strategy, focusing on breaking up the monopolies over internet discourse held by a select few tech companies, and demanding new legislation that takes into account the radically different landscape of the internet today. Big Tech companies should be broken up and treated as public forums in which the freedom of speech guaranteed by the First Amendment is observed. This would do wonders in addressing the problem of politically-motivated censorship plaguing the internet today, and harming the conservative cause.

Written By:

Ash Staub is an attorney and blogger, focusing on politics, culture, and law. You can read his blog at AshStaub.com.