On Wednesday, less than a week before the general election comes to a close, the CEOs of Facebook, Google and Twitter will appear before the Senate Commerce Committee. They’ll testify about Section 230’s liability shield and their companies’ content-moderation practices.
This is the same Senate that rushed through a Supreme Court nomination and still refuses to pass any economic relief for people who are unemployed and suffering from the pandemic’s grave impacts — but Republican lawmakers found time for this hearing anyway.
Well, maybe this hearing is part of a political campaign.
Over the past few months, Donald Trump and his enablers have hijacked the banner of big tech reform. They’ve used the power of the presidency, federal agencies, congressional hearings and proposed legislation to bully tech companies into letting Trump’s propaganda, disinformation and blatantly false content run unimpeded across social media. That content is part of a dangerous attempt to downplay the dangers of the pandemic, sow confusion about voting and lie about the election in the coming weeks and months.
Republicans have long insisted that tech companies have an anti-conservative bias. This is the unsubstantiated and false claim that social-media companies actively target conservative news and content for takedowns, bans or unwarranted fact checking.
This has turned into a fantastical bogeyman. And their proposed solution to this threat is to modify Section 230 to expose internet companies to liability for taking down content with which these big companies (and much smaller platforms too) or their users disagree.
The GOP can’t actually change the law before next week, but their threats to do so are still chilling. And whether it’s an actual amendment or just threats, these tactics make it much harder to moderate websites and take down racist and hateful content. They make it more difficult for social-media sites to remove calls to action that foment violence, as well as disinformation and conspiracies that purposefully subvert the truth or undermine the election.
None of those things are “conservative viewpoints”: They’re unfounded and unvarnished attempts to damage public health and sabotage our democratic processes. Yet in the face of threats to make social-media companies keep this stuff up or risk crippling lawsuits, those companies may decide to voluntarily lay off their curation efforts and let propaganda run rampant to avoid regulation.
It’s worth stepping back to grapple with the sheer number of government actions and legislative proposals predicated almost entirely on these bias claims, and what these proposed fixes would mean for the future of the internet.
Executive and agency actions
In May, the Trump administration kicked off a flurry of Republican responses to supposed anti-conservative bias by issuing an executive order after Twitter added context to Trump’s misleading and false tweets about the integrity of mail-in voting.
The executive order targeted Facebook, Instagram and Twitter by name, singling them out for exercising their rights to rein in lies that undermine the vote. Free Press joined a lawsuit against this executive order, because it unlawfully retaliated against these companies for exercising their First Amendment rights to curate and moderate their sites.
The order also directed the National Telecommunications and Information Administration, the government’s telecommunications and internet policy shop, to ask the FCC for a rules change too. So NTIA asked the (putatively) independent agency to issue rules saying Section 230 should not protect companies that take down third-party content on their sites even if the platforms find this content objectionable.
Content like propaganda, lies, hate and bigotry may not always be unlawful, but it may be awful and objectionable and well within an internet platform’s constitutional and statutory rights to remove. Despite Section 230’s unambiguous meaning and effect on this point — and the absence of FCC authority or expertise to issue binding guidance on this law — Trump’s appointees at the FCC bent to administration pressure and Chairman Pai promised to open a rulemaking proceeding on the issue.
The president’s allies in Congress have followed his lead, and both the Senate Commerce and Judiciary Committees have issued subpoenas to tech executives to force them to answer questions about their removal of the president’s favorite conspiracy theories.
Repeating disproven claims of anti-conservative bias, Republican Senate Commerce Committee Chairman Roger Wicker claimed that Facebook, Google and Twitter “disproportionately suppress and censor conservative views online. Public testimony from these CEOs is critical as the Committee considers several proposals to reform the Communications Decency Act.” That’s how we arrive on the doorstep of this hearing Wednesday morning.
In the past few weeks, as foreign disinformation campaigns have stepped up their efforts around the election, Facebook and Twitter have made some attempt to push back. They both tried stopping the spread of an unverified story regarding Hunter Biden that appeared in the New York Post.
In response to and in retaliation for those efforts, Republican Senate Judiciary Chairman Lindsey Graham issued subpoenas to the CEOs of Facebook and Twitter, demanding they appear to explain their content-moderation policies and their alleged anti-conservative “bias” for not spreading the still unverified and unsubstantiated Post story. But that hearing hasn’t materialized before the election, maybe because Sen. Graham had other illegitimate processes to run this week around the rushed Supreme Court confirmation process.
But in another effort to pressure tech companies to stop their anti-propaganda efforts, Graham has also introduced legislation called the “Online Freedom and Viewpoint Diversity Act” that would expose companies to liability for taking down content the companies or their users find objectionable.
Federal and state suits
The Department of Justice recently filed an antitrust lawsuit against Google for alleged unlawful monopolistic practices based on the company’s search dominance. The effort has been reportedly spearheaded by Attorney General Bill Barr despite the concerns of career DoJ staff that this effort is rushed too. It is a decidedly partisan effort, and 11 Republican attorneys general have joined the suit — not because Democratic AGs have no concerns but because of the politicized nature of this Barr tack.
When NPR asked what other legal action state AGs may bring to bear against the tech companies, the Arkansas attorney general echoed the same lie about anti-conservative bias. She said that these companies should not be able to block “speech that they do not agree with.”
But it’s the companies that have First Amendment rights against such government proclamations, not the other way around, no matter how much Trump and his appointees and allies want to pretend Twitter is somehow violating Trump’s rights. The government has raised the specter of taking this and other legal actions not just for legitimate or at least plausible antitrust concerns, but in retaliation for companies exercising their rights to moderate and comment on the president’s false pronouncements.
An effort to control the truth
Anti-conservative bias isn’t just an odd hobbyhorse. It’s a Republican agenda with real teeth. Its purpose is to get these companies to end efforts at moderating or removing calls to violence and propaganda in the possibly even more turbulent and troubled weeks after the election ends.
This hearing and all of the related efforts are the GOP’s closing argument on tech reform before this election. If you fact check the president, or interfere with his efforts to spread conspiracies, organize violence, or undermine the election count or transition, you will face the full force of the GOP power in retaliation.
Lucrative companies are very rarely interested in heroics. They will learn to accommodate these demands. It’s up to those of us who want to see an independent media system — one that can safely speak truth to power — to see these coordinated and cynical efforts for what they are.