As The Daily Wire reported last month, Sen. Josh Hawley (R-MO) — who I have called the most important freshman conservative since Sen. Ted Cruz (R-TX) — filed a bill, titled the Ending Support for Internet Censorship Act, in direct response to the systemic anti-conservative censorship imposed by the modern industrial titans of Big Tech. Specifically, Hawley’s bill seeks to end the legal liability safe harbor that Congress included in Section 230 of the Communications Decency Act (CDA) of 1996. By its own terms, the bill would only apply to large companies with “more than 30 million active monthly users in the U.S., more than 300 million active monthly users worldwide, or who have more than $500 million in global annual revenue.”
“With Section 230, tech companies get a sweetheart deal that no other industry enjoys: Complete exemption from traditional publisher liability in exchange for providing a forum free of political censorship,” Hawley said at the time.
Hawley’s bill did not emerge out of nowhere. In April, Cruz, in his capacity as chairman of the Senate Judiciary Judiciary’s Subcommittee on the Constitution, convened a hearing on the topic of CDA Section 230 immunity. During the hearing, constitutional law expert Eugene Kontorovich offered testimony that seemed to preview the eventual filing of Hawley’s bill:
[Section 230] shields companies from liability for much of the content on their sites, on the theory that they are not acting analogously to newspaper editors — making substantive decisions about what appears and what does not — but simply providing a forum or platform. …
Section 230’s blanket presumption is not mandatory, and certainly open to revision in a different environment more than two decades after its passage. In enacting the immunity provisions, Congress assumed that protected internet services provide “a forum for a true diversity of political discourse.” To the extent that assumption is weakened by online companies filtering out viewpoints that they deem ideologically impermissible, the assumptions behind Section 230 may need to be revisited.
Suffice it to say the bill has been controversial within right-of-center circles — to say nothing of its controversial nature within the broader Washington, D.C. lobbyist community.
I am very sympathetic to what Hawley is seeking to accomplish. As I told Vox’s Jane Coaston last month, “Conservatives could theoretically merely voice support to a market-based solution wherein lower barriers to entry encourage competing platforms to emerge, [but] the reality is that such a ‘solution,’ in the context of tech behemoths like Google and Facebook, is fanciful and completely unrealistic.” So if one accepts the premise that Big Tech censorship and de-platforming of conservatives is an increasingly acute and drastic problem, then the proposed remedy of removing CDA Section 230’s absolute immunity — in effect, flipping the burden to a tech platform to demonstrate that the platform is not engaging in politically motivated censorship, in order to maintain a legal status of absolute immunity — seems to me like a very mild remedy. Teddy Roosevelt-era trust-busting this is not.
Now, it looks like Hawley’s bill is gaining momentum within Republican members of the Senate Judiciary Committee. Cruz, interviewed yesterday by Nate Madden of Blaze Media, was quite clearly supportive of the measure. More generally, cracking down on Big Tech for its anti-conservative censorship proclivities seems to be an issue of increasing importance for Cruz’s political profile. Even more promising for Hawley, however, was Bloomberg’s report yesterday that Senate Judiciary Committee Chairman Sen. Lindsey Graham (R-SC) is keen on reining in CDA Section 230’s safe harbor provision. “Things would change tomorrow if you could get sued,” Graham said during a Committee hearing earlier this week, reported Bloomberg.
Hawley’s bill is an important opening legislative salvo in the broader intramural debate on the Right as to how best to address ubiquitous institutional leftist bias from the titans of Big Tech. Others, such as those affiliated with the Claremont Institute, are also helping to lead and offer possible paths forward. Ultimately, Hawley’s bill is a very mild legislative tweak in direct response to corporate malfeasance from institutional actors that have benefited from a superfluous congressional hand-out dating back to the early days of the mass-consumer Internet era. With both the Senate Judiciary Committee chairman (Graham) and an iconic Committee conservative (Cruz) now offering increased momentum for Hawley’s measure, it will be fascinating to see who else within the Senate Republican caucus hops on board.