Sen. Josh Hawley (R-MO), a Christian nationalist and the youngest member of the United States Senate, proposed legislation on Wednesday that would effectively appoint a panel of government central planners to monitor content on sites like Facebook and Google.
The bill, which violates the First Amendment, purports to be an effort to foster “political neutrality” on major Internet platforms. Its practical effect, however, would be to prevent these sites from disfavoring any political viewpoint whatsoever — including potentially viewpoints that are explicitly genocidal. Hawley named his bill the “Ending Support for Internet Censorship Act.’’
The bill functions by weakening safe harbor provisions of federal communications law that prevent websites from being held liable for content posted by third parties. Current federal law provides that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Without this provision, websites that allow third-parties to publish content likely could not exist, because the website could be held liable for libelous content published by someone else.
Absent the safe harbor, a troll seeking to sabotage Facebook, for example, could intentionally publish a defamatory statement on Facebook. Facebook could then be sued for libel.
Hawley’s legislation strips companies like Facebook, Google, and Twitter of their safe harbor protections unless the Federal Trade Commission certifies that they do not “moderate information provided by other information content providers in a manner that is biased against a political party, political candidate, or political viewpoint.”
Nazism is an example of a political viewpoint. The belief that white Americans should start a race war to eradicate people of color is another example of a political viewpoint. The belief that the president of the United States should be assassinated because of his conduct in office is another example of a political viewpoint. Under Hawley’s bill, major Internet platforms would not be able to restrict these viewpoints on their site.
The question of whether major Internet platforms should be able to restrict content advocating mass murder, moreover, is neither an academic one nor one that is without real world consequences. Members of Myanmar’s military used Facebook to advocate ethnic cleansing. According to the New York Times, “human rights groups blame the anti-Rohingya propaganda for inciting murders, rapes and the largest forced human migration in recent history.”
In fairness, the bill does contain two exceptions — although these exceptions are likely too narrow to provide any real protection to websites that, for example, don’t want to publish content intended to foster ethnic cleansing. One exception permits platforms to censor content that is not First Amendment protected speech, but only if “the provider does not act with the intent to discriminate based on political affiliation, political party, or political viewpoint.”
Censoring content by members of the Myanmar military who believe that people of certain ethnic backgrounds should be wiped out is discrimination on the basis of a “political viewpoint.”
The bill also sometimes allows platforms to act against content that impacts their bottom line, but this exception only applies if the company does not take “any action designed to appeal to, or gain favor from, persons or groups because of their political beliefs, political party membership, or support for political candidates.”
A common business motive for restricting content by Nazis is that not publishing Nazis is a good way to remain in the good graces of people who are not Nazis. Even a decision to censor the Myanmar ethnic cleansing content is likely to be motivated, at least in part, by a desire to appeal to people who support human rights.
And in case there is any doubt, this legislation is unconstitutional.
Though the Supreme Court once held that the government could sometimes require broadcasters to give equal time to multiple viewpoints, that decision rested on the fact that there was a physical limit on how many people could broadcast in a given region over the airwaves. This rationale does not apply to sites like Facebook or Google. Though there is a strong argument that the major Internet platforms have something approaching a monopoly due to their market dominance, this problem can be solved through strong antitrust laws. And antitrust does not involve direct government regulation of speech.
It’s likely that Hawley’s legislation is motivated by a series of actions — some real, some imaginary — that Internet platforms have taken against prominent conservatives, many of whom harbor extreme viewpoints. The House Judiciary Committee even invited the conservative personalities Diamond and Silk to testify that they’d been censored by Facebook.
But a ThinkProgress analysis of Diamond and Silk’s Facebook page determined that the two “actually received more total interactions in March 2018 (1,088,000), when they were supposedly being censored, than in March 2017 (1,060,000),” and that “Diamond and Silk received more interactions in January 2018 (1,328,000), when they began complaining about censorship, than in any month the previous year.”
None of this, of course, is to say that the major Internet platforms are handling their role as gatekeepers of media content well. Last year, ThinkProgress objected to Facebook’s decision to give the now-defunct conservative publication The Weekly Standard power to censor other journalists’ content — a power The Weekly Standard used at least once to censor ThinkProgress.
But any attempt to address Internet censorship through legislation must be done constitutionally. And, as noted above, this is a problem that is almost certainly better addressed by antitrust law than by direct government regulation of speech.