Senator Hawley Proposes Law To Force Internet Companies To Beg The FTC For Permission To Host Content
from the say-what-now? dept
Senate newbie Josh Hawley has made it clear that he’s no fan of big internet companies and has joined with others in suggesting that Section 230 is somehow to blame for whatever it is he dislikes (it mainly seems to be he thinks the public likes them too much). So now he’s proposed a massively stupid and clearly unconstitutional bill, called the “Ending Support for Internet Censorship Act,” to wipe out CDA 230 protections for large internet platforms. The proposal is shockingly dumb and so obviously unconstitutional it boggles the mind that Hawley is actually a constitutional lawyer.
The bill is pretty straightforward, both in how it operates, and in how misguided it is. If you’re a “big” internet platform — defined as having more than 30 million “active monthly users” in the US or more than 300 million such users globally (or having over $500 million in revenue) — then you automatically lose the protections of CDA 230. You can regain them by making a request to the FTC. In order to get them, you have to pay for an “audit” of your content moderation practices, and pro-actively “prove” via “clear and convincing evidence” that the practices are “politically neutral.” Once the you do that, the FTC would “vote” on whether or not you could get CDA 230 protections, and they would only be granted with a “supermajority vote,” which would mean at least four out of the five commissioners would have to vote for it. Since FTC Commissioners are always 3 to 2 in favor of the political party in the White House, that means any internet company that wants to get approval would need to get at least one commissioner of the non-Presidential party to vote for the immunity as well.
There’s no way this survives constitutional scrutiny (if it actually becomes law, which seems unlikely). The First Amendment pretty clearly says that Congress can’t create a law that (1) forces a company to get approval for its moderation practices and (2) judges content on whether or not it’s deemed “politically neutral.” Also, what the hell does “politically neutral” even mean? It doesn’t mean anything. And, as for “clear and convincing evidence,” tons of people have pointed to clear and convincing evidence that these platforms don’t moderate based on political viewpoints, and yet we still have tons of people insisting they do. Nothing is going to convince some people that the platforms are actively targeting conservatives, no matter how many times evidence to the contrary is presented. Hawley has set up a purposefully impossible standard. As we’ve pointed out, many people still insist that Twitter deciding to kick off literal Nazis is “evidence” of anti-conservative bias. As NetChoice points out, Hawley’s bill would require sites to host KKK propaganda just in order to obtain basic liability protections.
Is Josh Hawley truly arguing that any large website must cater to Nazis if it wants to allow public conversation? Because, damn, dude, that’s a bold call.
This is from the guy who claims to be a “Constitutional Conservative”? Really? His current bio hypes up that he’s a “leading constitutional lawyer” and talks about how he was one of the lead attorneys in the Hobby Lobby case, which was (in part) defending a company’s right to use the First Amendment to refuse to obey certain laws that violated the religious beliefs of their owners. So, apparently, in that case, it’s bad for the government to enforce rules for private businesses — but for other kinds of companies, the government should force them to moderate content in a particular way? I mean, is Hobby Lobby forced to be “politically neutral” in the products it sells in its shops? You’d expect Hawley to be at the front of the line screaming about how awful that would be. Can you imagine the stink that Hawley himself would put up if Congress attempted to force Hobby Lobby to be “politically neutral” in its own actions?
Either way, this law is a non-starter, and once again shows that Hawley isn’t legislating from any position of principle, but is grandstanding clearly unconstitutional ideas in the belief that self-identified “conservatives” hate the big internet companies these days, so any attack on them, no matter how dumb and unconstitutional, must be fine. As TechFreedom points out, this is little more than a fairness doctrine for the internet — something conservatives have been against for decades. Incredibly, for all of the misguided and misleading complaints about how “net neutrality” was the “government takeover of the internet,” Hawley’s bill actually does a bunch of the things that opponents to net neutrality pretended net neutrality would do — and yet, because it’s politically expedient, you can likely bet that many of those who were against net neutrality will now support Hawley’s ridiculous bill.