Despite President Donald Trump’s threat to veto the National Defense Authorization Act, the Senate voted Friday with a veto-proof majority to pass the sweeping defense bill. Trump’s veto threat contains several issues the president wants to see addressed, but among them is a repeal of Section 230 of the Communications Decency Act—the provision of law that acts as a liability shield for the nation’s largest tech companies.
That Section 230 is making an appearance in a debate about the nation’s defense bill speaks to the outsized attention this tiny provision of law has received over the last few years.
Section 230, passed in 1996, protects the Big Tech companies from being sued for the content users post on their sites. The law also creates a liability shield for the platforms to “restrict access to or availability of material that the provider or user considers to be … objectionable, whether or not such material is constitutionally protected.”
Though Section 230 protects more than just Google, Facebook, and Twitter, the giant tech platforms have benefited substantially from the privilege—so much that Section 230 can be characterized as https://www.cnn.com/2020/12/11/politics/senate-defense-bill-trump-veto-proof-majority/index.htmla giant government subsidy to the world’s biggest companies.
When the Internet Was Young
It wasn’t always viewed this way. The law was enacted nearly 25 years ago as something akin to an exchange: Internet platforms would receive a liability shield so they could voluntarily screen out harmful content accessible to children, and in return they would provide a forum for “true diversity of political discourse” and “myriad avenues for intellectual activity.”
But what was originally understood to be a privilege granted for reasonable content moderation has become judicially contorted, stretched into a bulletproof immunity that protects these companies from all manner of misdeeds.
Critically, in protecting these companies from costly damages in lawsuits, Section 230 has also fueled the growth of the Big Tech platforms which now engage in viewpoint discrimination at an unprecedented scale and scope; international mega-corporations determining what news, information and perspectives Americans are allowed to read, hear and access.
A handful of Big Tech companies are now controlling the flow of most information in a free society, and they are doing so aided and abetted by government policy. That these are merely private companies exercising their First Amendment rights is a reductive framing which ignores that they do so in a manner that is privileged—they are immune to liabilities to which other First Amendment actors like newspapers are subject—and also that these content moderation decisions occur at an extraordinary and unparalleled scale.
Big Tech’s Unprecedented Power
When Google decides to suppress or amplify content, it does so for 90% of the global marketplace. Twitter’s choices to cut off circulation of certain content—as they did when they banned circulation of a story critical of the Biden family, a month before the November election—very much shapes the national news narrative. Facebook, by its own admission, has the power to swing elections—which is troubling, as some of the platform’s “fact checkers” are partially bankrolled by a Chinese company.
The downstream impact these companies have on shaping independent thought, market access, consumer behavior, election integrity and speech are undeniable. In a very real way, these platforms are transforming the nature of what it means to be “free” in a free society.
That policy makers have a role here is obvious. While private companies have the right to set the rules for their own platforms and online communities, they do not have a right to do it with the privilege of Section 230 protections. And the more these companies engage in behavior that ranges away from the original goal of ensuring a “true diversity of political discourse” and toward gatekeeping independent thought in America, the more they prove themselves undeserving of special government treatment.
This is the crux of the concern expressed by Trump and a growing number of congressional Republicans. Critics who write off Trump’s opposition to the law as simply a reactionary response to these platforms subjecting his posts, and those of his agency heads and staff, to “fact checks” and censorship miss the key point.
Trump, like the many members of Congress who have issued reform proposals to Section 230, recognizes that the unprecedented power amassed by these corporations is a threat to the principles of our democratic self-government. His efforts to take on Big Tech’s subsidy in Congress’s defense bill reflect the urgency many Americans feel about the power these mega-corporations have to define acceptable speech, thought and behavior.
The question at hand distills to this: Are we to allow the lords of Silicon Valley to determine the terms of free speech, free thought, and free behavior in America? Or will we, a fiercely independent people, speak through our representative self-government to strip them of a congressional privilege they no longer deserve? Trump has opened the door. It is up to Congress to walk through it.
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