June 24, 2021
By: Craig Parshall and Jon Schweppe
Conservative activists across the country are demanding action from Congress to rein in the power of Big Tech and stop online censorship. There are a number of ways to do that. Many Republicans, like Colorado Congressman Ken Buck, point to the recent bipartisan antitrust bills in the House as an opportunity to reduce these companies’ power. Others, like Ohio Congressman Jim Jordan, suggest that we should instead focus on reforming Section 230 in order to better protect online speech.
We agree with Jordan that Section 230 reform is a must, and he is one of our most outspoken congressional allies in the fight against Big Tech censorship. His credibility on the issue is impossible to deny. But unfortunately, Jordan’s proposed Section 230 legislation, the Protect Speech Act, will not do much to protect free speech online—and may actually codify Big Tech’s censorial regime into law.
Republicans should embrace a simple litmus test in deciding whether to support a particular Section 230 reform bill: Will the reform require, or at least strongly incentivize, Facebook and Twitter to un-ban President Donald Trump? If the answer is “no,” then we have a problem. And the answer with Jordan’s bill is almost certainly “no.”
With only minor exceptions, the Protect Speech Act continues to provide Big Tech companies with the extraordinary legal protections they enjoy under Section 230. The bill empowers these companies to freely censor user content across a number of different categories. While some of those categories make sense and have judicially honed definitions—for instance, content that is “obscene”—other categories are extremely vague and constitutionally suspect. Censoring “excessively violent” content is permitted by the bill, but who gets to define “excessiveness?” Would online news footage of a bloody Antifa riot qualify as “excessive”? It appears these questions are left solely to the discretion of woke content moderators in Silicon Valley.
Other vagaries abound. Tech giants would have unfettered power to censor “harassing” content and suppress anything they deem to be sufficiently disagreeable. Promotion of “violent extremism” can be banned—which sounds anodyne, but Big Tech companies could, and likely would, interpret “violent extremism” to be any hyperbole that departs from politically correct orthodoxy. In fact, they’ve already done it by blocking complaints about the integrity of the 2020 election and by removing ostensible COVID-19 “misinformation” (much of which, incidentally, turned out to be true).
Those in favor of the Protect Speech Act might counter that the bill protects Big Tech censorship decisions only if they are based on an “objectively reasonable belief” that the decisions conform with one of the bill’s enumerated categories. But that three-word phrase is an ill-fitting tool for evaluating the content moderation decisions of online platforms. That same phrase has been invoked in some complex and confusing judicial rulings in patent infringement and tax evasion cases, where objective reasonableness can indeed be demonstrated. But in the Big Tech context, a monopolist could easily use its terms of service as a pretext to subjectively suppress undesirable opinions—and get away with it.
This same phrase was also used by the Supreme Court in 1989 in Graham v. Connor to analyze civil cases alleging police use of excessive force. There, the Court applied the “objective reasonableness” standard through the lens of the Fourth Amendment’s rule against unreasonable seizures. That lens makes sense precisely because it “provides an explicit textual source of constitutional protection,” as the Court wrote, and was further backed by decades of judicial interpretation.
Unfortunately, the Jordan bill fails to anchor its prescriptions for online speech to the objective free speech values of the First Amendment—or, for that matter, any other constitutional metric. Left to drift on an ocean of uncertainty, the Jordan “objectively reasonable” requirement will find safe harbor with judges who will, as they have been doing for years, defer to the Big Tech monopolies and their army of lawyers, thereby immunizing their subjective censorship decisions.
This outcome is virtually guaranteed because the bill actually mandates that companies follow their own terms of service as a sign of “good faith.” This inflicts the deepest cut of all: The Jordan bill allows mammoth tech giants to continue depriving citizen-users of their day in court thanks to Section 230, Washington’s never-ending gift to woke digital monopolies.
Ultimately, Section 230 reform must adhere to three principles derived from our Founding Fathers. First, the Declaration of Independence listed jury trial deprivation at the hands of the British Crown as one of the Founders’ great grievances. Today, a private citizen right of action against market-dominant tech companies is a must.
Addressing concentrated power is also essential, both logically and historically. The Framers were wary of government-supported monopolies, and though the constitutional language prohibiting the practice advocated by some of them did not win the day, their concerns should inform any Section 230 amendment today.
Finally, Congress should heed the wisdom and democratic fabric of the First Amendment as the only truly objective measurement to correct the censorship practices of Big Tech monopolists.
Congressman Jordan certainly understands the existential threat Big Tech companies pose to our democracy. He will play a key role in determining any legislative solution that is ultimately adopted by Congress and signed into law. Our hope is that he will go back to the drawing board and try again. The Protect Speech Act should be regarded as a worthy attempt at a first draft—but nothing more.
Craig Parshall is a constitutional attorney serving as senior advisor on legal policy and civil liberty to the American Principles Project (APP), where he focuses on online free speech. Jon Schweppe is the Director of Policy and Government Affairs for APP.
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