WASHINGTON D.C. —­­ Today, Senator Josh Hawley (R-MO) introduced legislation (press release), “Ending Support for Internet Censorship Act,” that would make popular social networks responsible for third party content — unless they receive certification from the Federal Trade Commission of their political “neutrality.” Companies would have to reapply every two years after receiving an external audit of how they moderate and prioritize user content, and re-certification would require the votes of four of five FTC Commissioners.

“Hawley’s proposal would revive the Fairness Doctrine, an idea that Republicans have opposed since the Truman administration,” said Berin Szóka, President of TechFreedom. “For the first time, Internet services would effectively need a license issued by the U.S. government to operate. That would make them utterly dependent upon the goodwill of FTC Commissioners, and in turn, the White House. Any two Commissioners could block recertification. While the original Fairness Doctrine clearly skewed broadcast programming, actual showdowns were exceedingly rare: licenses were almost never canceled, broadcasters could rely on an expectation of renewal of their licenses every eight years, and the FCC at least tried to hide its partisan agenda. Hawley’s bill would set up a partisan bloodmatch every other year, with the FTC having to take a public vote on each social network’s political ‘neutrality,’ and companies having to prove themselves innocent each time. In short, the bill would give politicians a gigantic regulatory hammer to use against Big Tech — and transform the FTC overnight into the most politicized regulatory body in Washington. Sadly, that seems to be the point.”

In testimony before the House Judiciary Committee last year at a hearing on anti-conservative bias, Szóka explained in detail the parallels between the Fairness Doctrine and proposals to amend Section 230 to require political neutrality.

“Hawley claims that Section 230 is some kind of subsidy for Big Tech, but this just isn’t true,” continued Szóka. “Given the staggering scale and breathtaking speed at which users post content online, there’s just no way for social networks to vet content the way newspapers vet letters to the editor. This makes Section 230’s shield against liability for user-generated content as essential to social networks as a broadcast license was for broadcasters. Ironically, Hawley’s approach essentially concedes the vital importance of Section 230: rather than proposing to tweak how the statute works, he proposes simply to tie its indispensable protections to a government-issued certification of political neutrality.”

“Hawley’s bill would profoundly politicize how social media sites work,” concluded Szóka. “Second-guessing how broadcasters filled scarce airtime created a bland orthodoxy that excluded conservative views. Online, the problem isn’t what views fill scarce airtime, but the opposite: how to deal with an endless explosion of content and tendency of the loudest, nastiest views to dominate online forums. Content moderation is what makes social networks usable for normal people, yet Hawley’s bill would make social networks hesitate from combating misinformation and various forms of online abuse — lest they offend some politician. And if, as social science research suggests, such harmful content seems to help Republicans energize their base more than it helps Democrats, even truly ‘neutral’ enforcement of terms of service will, on net, hurt the Right. That which would explain why Republicans insist on framing content moderation as ‘censorship’ of their views.”

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We can be reached for comment at media@techfreedom.org. See more of our work on free speech and Section 230 on our website, including:

  • Our op-ed “Some conservatives need a First Amendment refresher”
  • Our letter to AG Session “DOJ Inquiry re Tech Companies Bias is Misguided”
  • Our blogpost “Reality Check for Trump and Republicans Crying ‘Bias’”!
  • President Berin Szóka’s testimony before the House Judiciary Committee on the filtering practices of social media platforms
  • Our statement on the passage of SESTA
  • Our statement on the takedown of Backpage and its implications for Section 230 and recent sex trafficking legislation
  • Tech Policy Podcast #226: The Fairness Doctrine: Next Generation
  • Tech Policy Podcast #214: Information Intermediaries in a Nutshell