Republican's 'Big Tech Accountability' Platform Calls For Both More And Less Moderation, And A 'Not Fairness Doctrine' Fairness Doctrine
from the all-over-the-map dept
It’s become quite clear over the past few years that the Republicans’ platform these days is “punish those who disagree with us,” or, in the shorter vernacular: “cry moar, libs.” This becomes blatantly clear as you look at the newly released “Big Tech Accountability Platform” that the Republicans in the House have released (coming from the ranking member of the House Energy & Commerce Committee, Rep. Cathy McMorris Rodgers). The platform actually starts out making some amount of sense, but note that it will ignore all of that within a single page. The principles laid out are actually good ones — if the plan actually followed them (which it does not):
1. We will protect free speech: Republicans worked hard to repeal the Federal Communications Commission?s Fairness Doctrine and we will not advocate for a new one.
2. We will be mindful of small businesses and entrepreneurship: Any policy we pursue will balance these essential interests to preserve competition.
3. We will promote American tech leadership and innovation: We will continue to promote American global leadership while working to address issues here at home.
You could build a good platform around those pointers. But, this is not that. On the very next page, it lists out its legislative “concepts” for Section 230 reform, which quickly show how things go off the rails.
Legislative Concept 1: Limit the Right of Exclusion
a. Define Big Tech companies as places of public accommodation and prohibit discrimination based on political affiliation and/or viewpoint.
b. Alternatively, define Big Tech companies as places of public accommodation and limit liability protections to content moderation processes that provide a measure of due process to users.
So, uh, remember that whole thing about respecting free speech and not bringing back the fairness doctrine? This legislative concept is literally bringing back the fairness doctrine. It’s also unconstitutional as it attacks the 1st Amendment rights of companies not to be compelled to host speech they don’t want to host.
Perhaps even more incredible is that while the first legislative concept is basically “moderate less,” the second legislative concept is “moderate more”!
Legislative Concept 2: Require Reasonable Moderation Practices
a. Require Big Tech companies to implement and maintain reasonable moderation practices to address illegal drug sales; child exploitation, including child pornography and trafficking; targeted harassment or bullying of users under the age of 18; terrorism; counterfeit products and materials sales; and all other illegal content on their platforms.
b. Failure to implement and maintain such reasonable moderation practices is a violation of Section 5 of the Federal Trade Commission (FTC) Act.
c. Such companies may be liable for content decisions related to content included above but may assert liability protections if they implement and maintain reasonable moderation practices.
This shows how totally unprincipled and ignorant the Republicans are on this topic. It’s kind of the standard response of those who don’t even understand the basics of content moderation. The assumption is always that there’s some perfect level of moderation — less moderation of speech we like, and more moderation of speech we dislike. But that assumes everyone agrees on which speech is liked and which speech is not. And that’s not how any of this works.
This isn’t a Goldilocks fairy tale, in which some moderation is too much, and some moderation is too little, and you can just turn the dials and find the kind of moderation that is “just right.” And legislative proposals that pretend otherwise only show their complete disconnect from reality.
And they’re not done yet.
Legislative Concept 3: Limit Liability to Protected Speech
a. Modify Section 230 to only provide liability protection for moderation of speech that is not protected by the First Amendment or specifically listed in the statute.
Uh, yikes? This might depend on what’s “listed in the statute,” but already listing types of speech that get immunity and that do not would raise serious 1st Amendment issues. But beyond that, it’s not even clear what this means? If it means that 1st Amendment protected speech no longer gets 230 protections then, um, won’t sites be much, much quicker to pull down all sorts of content? This would mean no 230 protections over abuse, harassment, hate speech, etc. Under such a proposal, you’d think that Republicans spreading disinformation would be at serious risk of having all their accounts banned. I know that the Democrats might like this, but it seems like a bizarre thing for Republicans to suggest.
Legislative Concept 4: Remove Liability Protections
a. Remove liability protection under Section 230 for content moderation decisions made by Big Tech companies that discriminate based on political affiliation or
We’ve been over this before. It would violate the 1st Amendment and create compelled speech. Why do no politicians seem to understand this?
Legislative Concept 5: Require Appeals Processes
a. Require Big Tech companies to implement and maintain reasonable and userfriendly appeals processes for users to challenge content moderation decisions on constitutionally protected speech as well as decisions about suspending or deplatforming users. The appeals process must clearly explain the company?s content moderation policies and identify the specific provision(s) the content or user violated and why.
Why? Why is Congress interfering in the ways that private companies run their business? Most companies (and all large companies) do have an appeals process already. But mostly all these kinds of proposals do is serve to make it a lot more costly for websites to suspend bad actors. It’s like an “all trolls get to troll” act, and often is used to test the boundaries of what people can get away with. It’s a perfect tool for bad actors.
Legislative Concept 6: Carve Out Big Tech Companies from Section 230
a. Carve out Big Tech companies and/or only those that are specifically engaged in certain activities, such as hosting social media platforms and app stores, from Section 230 liability protections while retaining current liability protections for all new entrants and small companies.
b. Repeal Section 230 protections for companies engaged in targeted behavioral advertising.
It’s unclear how either of these ideas does anything even remotely useful. I mean, you could carve big companies out of 230 and they’d survive, but all it would likely do is lead to a lot of wasteful litigation. It would also almost certainly lead the companies to be a lot more aggressive in taking down content, and would then rely on the 1st Amendment to protect those decisions. As for connecting 230 to advertising practices, we’ve seen a few bills that try to do that and no one has ever explained what useful thing that does — other than basically attack one particular business model.
Nearly every one of these proposals doesn’t seem to have any principled argument behind it. There’s no policy rationale at all. It’s entirely “big tech is bad, big tech likes 230, let’s take 230 away from big tech.” That’s not leading. That’s regulating based on perceived grievances.