“Senator [Hawley] thinks conservatives are too stupid to realize he’s trying to kill free speech online,” FreedomWorks, the conservative advocacy group, tweeted out last month. It’s not alone in its criticism. In recent weeks, a slew of prominent right-wing voices have taken similar aim at Sen. Josh Hawley, a Republican of Missouri, over his “Ending Support for Internet Censorship Act,” a bill that on Wednesday unsurprisingly garnered praise from the White House.
“You know what Josh is doing right now? He’s doing some very important legislation, because we have to do something about what’s happening,” Trump said from behind a podium in the White House’s East Room on Thursday. Moments before, Hawley had wrapped up pitching his proposed law, drawing the applause of senior administration officials and members of the first family.
All were gathered for the president’s White House Social Media Summit, a megaphone gifted by the nation’s chief executive to a host of right-wing provocateurs who’d gathered to moan and sob over being supposedly “censored” by websites like Twitter. (Bill Mitchell, James O’Keefe, Charlie Kirk, and Benny Johnson, who represent just a handful of the event’s headliners, have around 2.3 million Twitter followers, collectively.)
“They’ve gotten a special giveaway from government,” Hawley told the audience, in reference to social media firms. “They’re treated unlike anybody else. If they want to keep their special deal, here’s the bargain: they have to quit discriminating against conservatives. You agree with that? No more. No more discrimination. It’s that simple. That’s all were asking for.”
The “deal” to which Hawley refers is the single most important law protecting free speech online: Section 230 of the Computer Decency Act. It’s what allows sites like Facebook, YouTube, and Twitter to host content generated by users—to exist. Get rid of Section 230 and any of these companies could at any moment be sued over virtually any post, video, or tweet users contribute. There would be no Wikipedia, no chat rooms, nor user reviews. The internet would become a magazine, a reference section, where readers are prohibited from interacting with one another.
If website operators could be held liable for everything that their users say, it would no longer be tenable to allow users to speak. Right now, Gizmodo can’t be sued out of existence just because one of our readers decides to libel a public official in the comment section below. If that’s how things worked, there would be no comment section. How many companies would be willing to take on that kind of liability? The answer is zero.
What Hawley’s bill proposes is that the government force social networks to be “politically neutral” or else be stripped of this protection. It remains unclear what such a law would mean in practice, but regardless, the bill is an attempt to curtail the First Amendment rights of not only the people who own and operate websites, but their users as well.
This idea appears to have stemmed from a bad reading of the Computer Decency Act itself, which does mention that online platforms “offer a forum for a true diversity of political discourse,” a supposed finding of Congress in the late 1990s. Hawley and other lawmakers appear to believe that the purpose of Congress mentioning this was to indicate that only websites that observe “true diversity” are worth protecting.
The law, of course, says nothing of the sort. In fact, this assertion by Hawley and others led Sen. Ron Wyden, one of the law’s key authors, to suggest earlier this year that Hawley must not have actually read it.
FreedomWorks, which rightly cast Hawley’s bill as “government controlling online speech,” isn’t the only right-wing organization to recognize the threat dismantling this safe harbor poses, as TechDirt’s Mike Masnick reported this June. John Samples at the libertarian-leaning CATO Institute writes—under the avoidably cryptic headline, “Hawley Contra Reagan”—that Hawley’s bill “seeks to undermine an older American conservatism.” (Apparently, the only sufficiently stodgy way to critique a bill that seeks to regulate the internet is to peer back into a political era that basically predates it.)
“Sen. Hawley’s bill might lead to a good outcome,” suggests Samples, lending the bill, which has no chance of passing, weight and prospect it doesn’t actually possess. “[I]n invalidating the law, the Supreme Court might recognize clearly that social media curation deserves strong First Amendment protection.” In other words, the only good thing to come of Hawley’s bill might be in its capacity to serve as an example of how to write terrible laws.
“Eroding the crucial protections that exist under Section 230 creates a scenario where government has the ability to police your speech and determine what you can or cannot say online,” Billy Easley, a policy analyst at the Koch-funded Americans for Prosperity (AFP), wrote in a statement for the group last month. “This bill would punish success in the next generation of innovative startups and prevent them from achieving their full potential.”
In asking lawmakers to reject the bill, AFP says: “The legislation would fundamentally change how online companies have successfully operated for years, undermining a key protection for digital free speech and an essential ingredient that made the United States the global technology leader.”
Hawley’s bill was also the focus of a Nation Review article last month by David French, who politely deemed it an “unwise” and an “unconstitutional mess” that would “enable public censorship in the name of limiting private control.” The bill, he wrote, would “inject the federal government directly into the private social-media business and grant it enormous power over social-media content.”
But in a press release Wednesday, Hawley’s office touted the newfound support his bill’s received from the White House and other GOP lawmakers, such as Sens. Lindsey Graham and Ted Cruz, the latter of whom somehow remains under the absurd belief that all websites should be “politically neutral” or sued into the ground.
“Things would change tomorrow if you could get sued,” he said in a recent Senate hearing.
No supporters of the bill have been able to articulate precisely how this proposed law would work in practice, or how it would be enforced. Anytime a conservative voice gets kicked off a platform, a liberal voice has to get the boot too? For every tweet opposing abortion, there must be another one supporting it? Does there need to be an equal number of Facebook groups for and against gun control? Do fringe issues, like the debate over circumcision, get equal consideration? Exactly how much money are taxpayers going to spend funding the new federal agency charged with monitoring and policing all these conversations?
What’s truly obnoxious is that the current law protecting online speech has virtually nothing to do with politics. One might be surprised to hear that many internet users aren’t political at all. Others have zero interest in debating their political views online. Hawley’s bill, nonetheless, would certainly have a devastating impact on the free speech of these people, who ultimately could give a shit less about any he has to say.