On October 28, the Senate Commerce Committee will hold a hearing entitled “Does Section 230’s Sweeping Immunity Enable Big Tech Bad Behavior?” Testifying will be Twitter CEO Jack Dorsey, Google CEO Sundar Pichai, and Facebook CEO Mark Zuckerberg. Last week, Commerce Committee Chairman Roger Wicker, Judiciary Committee Chairman Lindsey Graham, and Sen. Marsha Blackburn published a “fact sheet” answering questions about Section 230 and the amendments that would be made by the Online Freedom and Viewpoint Diversity Act, a bill the three Senators recently introduced. TechFreedom responded with a letter that presents a detailed critique of their claims about Section 230 and an explanation of how their bill would change the law for the worse, and why it would violate the First Amendment.

These Senators insist they’re not trying to ‘make it harder for platforms to remove objectionable content,’ but that is precisely what their bill would do,” warned Berin Szóka, Senior Fellow at TechFreedom. “Their bill would make it possible to sue websites for moderating hate speech, conspiracy theories, and other forms of ‘lawful but awful’ content. Even attaching a warning label instead of removing content could be grounds for liability. They claim that moderation of hate speech would be protected as a form of ‘harassment,’ but as the Administration’s FCC petition makes clear, ‘harassment’ is about statements directed at a specific user, not generalized bigotry about groups. Likewise, they claim their bill would protect moderation of medical misinformation as a category of ‘self-harm,’ but that term obviously fails to capture the real harms to the health of others caused by false statements about masks, vaccines, social distancing, etc. Finally, they claim their bill would protect moderation of foreign election interference because that is already illegal. In fact, current campaign law bans only express advocacy of specific candidates, leaving foreign actors free to engage in ‘issue advocacy.’ Thus, moderation of foreign election interference that does not mention a specific candidate would not be protected by Section 230 under the Wicker-Graham-Blackburn bill. If they want Section 230 to protect moderation in these cases, their bill must say so explicitly.”

Rewriting Section 230 to protect some kinds of content moderation while punishing others would be grossly unconstitutional,” continued Szóka. “Republicans want websites to continue moderating pornography, dirty words, and content that is pro-terrorist or unlawful, but want to discourage other forms of content moderation. Drawing such content-based distinctions in law is among the most clearly unconstitutional forms of censorship imaginable. Unlike broadcasters, digital media are fully protected by the First Amendment, and website operators have precisely the same right as newspapers to decide what content they do and do not want to carry. Contrary to the President’s claims, websites are not ‘public fora’ equivalent to government actors. Characterizing Section 230’s immunities as ‘privileges’ will not allow the government to selectively deny protection to disfavored editorial decisions. This would clearly violate the ‘unconstitutional conditions‘ doctrine.”

Republicans are embracing a Fairness Doctrine for the Internet,” concluded Szóka. “Until 1987, broadcasters were compelled to carry content they did not want to in the name of fairness. The Supreme Court upheld this requirement only because it denied broadcasters full First Amendment rights. Republicans fought the Fairness Doctrine for decades, yet now are embracing an even more vague and arbitrary version of the doctrine for the Internet. They would do well to remember President Reagan’s explanation for abolishing the Fairness Doctrine: ‘History has shown that the dangers of an overly timid or biased press cannot be averted through bureaucratic regulation, but only through the freedom and competition that the First Amendment sought to guarantee.’”Read our letter to the Commerce Committee here.

For more analysis, read our comments and reply comments on the NTIA’s petition to the FCC.