Here on Techdirt, we’ve written about a bunch of John Oliver’sLast Week Tonight shows that are quite frequently directly in agreement with what we write about on Techdirt. We’re often impressed at the level of detail and nuance he’s able to approach complex issues with, while (of course) keeping things quite funny. I know that he has a large, very smart team, that often digs in deep with experts in order to get a complete picture. That’s why his reports on SLAPP suits, voting machines, grandstanding state AGs, police accountability, encryption and much much more have been featured here as worth watching on important topics we’ve covered for decades.
However, I’m quite disappointed in his most recent show about antitrust reform and tech monopolies. I do think it’s worth watching, but it’s missing some important context that I would have normally expected from him and his team.
I think that the video does do a good job addressing some of the actual problems of giant tech companies and their power. Though, I do wonder about using a quote from Jonathan Taplin as support for anything, considering he’s an extremist copyright maximalist, whose screeds against Google and the internet are so full of wrongness that they’ve inspired a whole genre of NY Times corrections.
But, the problem with Oliver’s segment is that while it spends most of the episode laying out legitimate concerns about tech power concentration, it then simply accepts that the two popular bills making their way through Congress will actually help and won’t cause problems. Oliver embraces and supports the American Innovation and Choice Online Act (AICOA) and the Open App Markets bill. However, as we’ve explained, while both bills have some good parts, the only reason Republicans are supporting them is that they know that the bills will be massively abused to litigate content moderation decisions.
Oliver doesn’t mention this or explore the issues. He only mentions Republican support in noting that both Bernie Sanders and Josh Hawley support the bills, suggesting that the only reason the bills have bipartisan support is because they’re “too narrow.” But that ignores that the actual reason they have Republican support is because Republicans see this as a tool to punish and intimidate “big tech” into leaving their lies and propaganda online. Ted Cruz has repeatedly noted he supports these bills because they will “unleash the trial lawyers” on these companies.
And, just after Oliver’s segment aired, Hawley again bragged about using them to attack “woke” corporations:
And, at the very least, I’d expect Oliver and his team, with their willingness to explore nuances, to at least maybe explore why support for these bills are coming from copyright maximalist extremists and populist propagandist politicians.
But… he doesn’t.
Instead, he implies falsely that the only criticism of these bills is coming from big tech “shills.” And while it is true that some of the pushback on these bills is coming from disingenuous sources, using disingenuous arguments, some of the concerns are legit. And to wipe them away and assume that just because he’s accurately laid out the problem, that these bills are automatically a solution is the type of facile, but wrong, exploration of complex solutions I’m used to it from much of the rest of the media, but had come to expect better of from Oliver.
I mean, just as one example, four years ago, Oliver himself did a wonderful piece about how state Attorneys General abuse their positions for political means, often doing the will of certain industries, to attack other industries. And, I should note clearly here that these bills enable state AGs to go after the tech companies. So, if Oliver and his team are well aware of that, why are they downplaying the possibility that these bills might be abused and dangerous, political ways?
As we’ve discussed at length over the last few months, there are fairly easy ways that these bills could be amended to limit the possibility of abuse. But the Democrats sponsoring the bills have refused to do so, because they know they’d lose that critical “bipartisan support.” But, really, that should be the story here. The only reason these bills have bipartisan support is because Republicans know they’ll be abused, and WANT them to be abused. The only amendments we’ve seen have simply been to carve out certain industries after lobbyists complained.
Again, that seems like the kind of story I’d expect to see from Oliver, rather than full throated support for these bills.
The problems with copyright have been a subject of coverage here at Techdirt since the beginning, and for most of that time it has been largely a non-partisan subject. At the moment, however, that isn’t so much the case thanks to Josh Hawley’s war with Disney, which has created a situation where some copyright reform ideas that are conceptually good are mired in culture war issues, partisan politics, and unconstitutional nonsense. This week, we’re joined by the Niskanen Center’s Daniel Takash to discuss the problems with Hawley’s copyright bill and copyright law in general.
Apparently, I never should have wished on that old monkey’s paw for copyright term reduction. One of the very reasons why Techdirt exists in the first place, and why it was started nearly 25 years ago, was to fight back against over expansive copyright laws, and, as such, we’ve spent many years and many posts arguing about the problems of excessive copyright terms. Indeed, there are few things I’ve hoped for more in these two and a half decades than for Congress to realize the dangers of excessive copyright and to move to shorten copyright terms back towards their actual constitutional underpinnings.
Almost exactly ten years ago, Republicans in Congress actually seemed to recognize that copyright terms were too long, and published a paper arguing, in a principled way, for shorter copyright terms. Of course, within 24 hours, the screaming responses from Hollywood caused the paper to be pulled, and for the author of the paper to be fired.
So… now, we’re actually seeing a bill to reduce copyright terms, coming as promised from Senator Josh Hawley, one of the most performative, least principled elected officials around. Hawley has now officially released his Copyright Clause Restoration Act and made it abundantly clear that he’s doing so to punish Disney for that company’s political speech.
Everything about this bill is ridiculous and almost certainly unconstitutional. And I say that as someone who was arguing for shorter copyrights that were more closely aligned with the Constitution since Josh Hawley was in a private boys prep school (which is funny since he so wants to present himself as a man of the common people).
So, let’s go through the bill, and discuss what actually makes sense, but also why Hawley’s attempt here is so ridiculously bound to fail. It starts out by returning copyright term to what Hawley (incorrectly) refers to as the “original term.”
(1) ORIGINAL TERM.—Notwithstanding any provision of title 17, United States Code, or any other provision of law, copyright in any work shall endure for 28 years from the date it was originally secured.
(2) EXTENSION.—The holder of a copyright under paragraph (1) shall be entitled to a renewal and extension of the copyright in the applicable work for a further term of 28 years if the holder applies for that renewal and extension during the 1-year period before the expiration of the original term of the copyright under that paragraph.
So, first off, if we’re going back to the “original term” that would be 14 years with a 14 year renewable extension possible. The US didn’t shift to a 28 year/28 year extension copyright term until the Copyright Act of 1831. Also, I mean, if we’re going back to “original” copyright thinking, the law only applied to maps, charts, and books. Hell, sound recordings weren’t even covered by federal copyright law until 1972.
Anyway, there are actually strong public policy reasons to consider returning the US to a 28 year/28 year extension copyright system. Evidence has shown a massive cost to the public of our over extended copyright law — and the constitutional underpinnings of copyright law are that it must benefit the public (not, necessarily, the copyright holder). On top of that, back when we did have a 28/28 copyright system (which we had until 1978), the vast, vast majority of copyright holders did not renew their copyrights at the 28 year mark. The one exception, by the way, was movies (which, hold that thought…).
So, there are perfectly good, principled policy reasons to push for shorter copyright. Indeed, there are economic studies that have suggested the ideal copyright term for public benefit is somewhere around 15 to 38 years. And, it seems that a perfectly reasonable way to set this up is to have extremely short copyright terms, with frequent renewal periods that grow increasingly expensive. If it’s not worth it for someone to renew, let the work go into the public domain where the public can make use of it.
Of course, there are a few problems with jumping into this approach, with a big one being that in order to do this, the US would have to immediately violate a decently large number of international treaties. However, that’s long been the excuse of those looking to extend copyrights ever longer, or pushing ever more draconian copyright laws on the rest of us. They go running to international trade negotiations and slip in something awful, and then run back to Congress, demanding that we make copyright worse to meet our “international obligations.” After all, the architect of the DMCA, Bruce Lehman, has publicly admitted that this is how he got the DMCA into law. After Congress refused to pass it, he ran to Geneva, and got an international treaty passed, then went back to Congress insisting it had to enact the DMCA to comply with our “international obligations.”
That said, the reality is that Congress is not bound by any international treaties, and can pass legislation that violates them. That doesn’t mean it won’t create some international messes, though, and that could lead to retaliation in a variety of forms.
The next section of the bill then goes even further, and into murkier legal territory, by trying to claw back copyright terms already granted, making the law retroactive:
(2) RETROACTIVE EFFECT.—
(A) IN GENERAL.—Subject to subparagraph (B), subsection (a) shall apply with respect to a copyright that, on any date on or after May 1, 2022, is owned by a person that—
(i) has a market capitalization of more than $150,000,000,000; and
(ii)(I) is classified under North American Industry Classification System code 5121 or 71; or
(II) engages in substantial activities for which a code described in subclause (I) could be assigned.
Phew. So there’s a lot to break down here. This is Hawley’s weird attempt to make it obvious to everyone that this is, effectively, a bill of attainder, and specifically designed to punish Disney. Hawley, who positions himself as a “constitutional scholar” surely knows that bills of attainder are unconstitutional. I mean, it’s right there in Article I, Section 9, Clause 3:
No Bill of Attainder or ex post facto Law shall be passed.
A bill of attainder is defined as the legislature effectively targeting an individual, group, or company for punishment. And, I mean, Hawley didn’t shy away from making it clear that this was a bill of attainder in his press release, literally headlining it “Hawley Introduces Bill to Strip Disney of Special Copyright Protections.” That press release title is basically “hello, I am introducing a bill of attainder.” Because Disney has no “special” copyright protections. It just has copyright protections. And then literally calling out the company you are trying to punish as the reason for your bill is effectively handing them their brief to sue to stop the law as unconstitutional.
But, to really cement this home, while the bill would restrict all future copyright to a maximum of 56 years, it would strip only a small number of companies of their current copyrights. And from the text above, you can see how narrowly focused the bill is. Basically, everyone who has extremely long copyrights today can keep them unless the copyright is held to a company with a market cap over $150 billion (Disney is currently around $200 billion), and is classified in the NAICs system as being in two specific industries: 5121 for “Motion Picture and Video Industries” and 71 for “Art, Entertainment, and Recreation” which is the code that generally applies to theme park companies.
Doing a quick search around, it appears that the retroactive nature of the bill may only apply to a very small number of companies which are in those classifications and over $150 billion in market cap. On the Hollywood studio side, you have Disney and Comcast NBCUniversal (though NBCUniversal’s primary NAICS code is listed in 5152 for “pay and specialty TV”), but clause II would likely cover it. Netflix’s primary classification is otherwise, but it would also fit.
I guess it’s possible Amazon could get covered by this as well, as it owns MGM. MGM by itself has a much smaller market cap, but Amazon has a larger one. So if you lumped them together, it could take away all of Amazon’s copyrights and… well, wouldn’t that be interesting? Viacom’s market cap is below the threshold. Arguably, Apple might be covered as well. The new Warner Bros. Discovery market cap is also way below the threshold.
So, end result, no new copyrights can last more than 56 years. Most existing copyrights remain until they were set to go into the public domain, except for the um, “woke” corporations of Disney, NBCUniversal, Netflix, Amazon and Apple. It sure looks like this is directly targeting a very small number of companies — companies that Republicans have been known to criticize heavily.
There is also the takings issue. In the past, I’ve seen (mainly copyright maximalists) argue that reducing copyright would violate “the takings clause” of the 5th Amendment. This is the part that says “nor shall private property be taken for public use, without just compensation.” In general, I have problems with this applying to copyright, because I don’t think it’s appropriate to call copyright “private property.” And, in fact, if it is then it seems that the takings clause should have been violated when we massively extended copyright with the 1976 Copyright Act, and again in 1998 with the Sonny Bono Copyright Term Extension Act. In both cases, works that were slated to reach the public domain were “taken” back and held in copyright for many more years. If that’s not a “taking” under the 5th Amendment, then shortening copyright terms shouldn’t be either.
Still, I would bet that Disney and others would claim otherwise, and they would have to fight their way through the court. And we’ve seen that this particular court (even very recently) takes a very broad understanding of the “takings clause,” to the point that it would probably need to overrule its own ruling from just last year to decide otherwise.
There is one final clause in the bill, a weak attempt to deal with cases where some of the companies listed above have copyrights that would expire under this bill, but which are still in active use being licensed. There, it includes some terms under which the license would expire over a 10 year period, effectively phasing out the copyright over that time.
(B) LICENSING.—If, as of May 1, 2022, a person is operating under a license with respect to a copyright that is subject to subparagraph (A) and that, because of the application of that subparagraph, would expire during the 10-year period beginning on May 1, 2022, that person shall continue to hold the rights contained in that license (to the exclusion of any person not granted those rights by a license before May 1, 2022) for a period that is the shorter of—
(i) 50 percent of the remaining license term, as of May 1, 2022; or
(ii) 10 years, beginning on May 1, 2022.
And, well, whatever. It’s not like this bill has a snowball’s chance in hell of going anywhere. Because it’s not actually meant to go anywhere. It’s all part of Hawley’s non-stop performative bullshit, playing to a base he believes is so stupid that they’ll lap up whatever culture war nonsense he puts in front of them. And, right now, they want their politicians to “punish” Disney, because Disney execs offered some mild criticism of Florida’s pro-bigotry bill.
Copyright terms should be reduced. Massively. But this isn’t going to do it. Nor is it actually intended to to do it. Copyright term reduction is just a convenient tool for Josh Hawley to do Josh Hawley kinds of things. Anyway, that will teach me never to wish on the old monkey’s paw for copyright term reduction ever again.
You will recall that Lauren Boebert was unsuprisingly confused about what lawmaking power she has as a lawmaker, having threatened to not “extend Micky (sic) Mouse’s trademark”, which is not a power Congress has. Josh Hawley, who has never been shy about threatening private companies over protected speech, at least has straight which law to threaten Disney with.
If you can’t read that, it says:
For years, @Disney has gotten special copyright protections from the federal government – allowing them to charge consumers more. Woke corporations shouldn’t get sweetheart deals. I’ll introduce legislation this week to end their special protections – enough is enough.
It’s not just what you do, but how and why you do it that matters. This is a perfect example. I too don’t want to see yet another extension of the current copyright term. Though, by all accounts, Disney has recognized how untenable further term extension is and hasn’t been lobbying for it at all. Ever since the public domain was allowed to return in the US, Hollywood has mostly accepted its fait regarding works from 95 years ago. But that doesn’t mean I want to live in an America where a select group of state actors can openly threaten private companies over protected speech.
Beyond that, it’s entirely unclear what legislation Hawley is proposing. Disney doesn’t have “special copyright protections”; it has the same protections as everyone else, albeit protections it specifically and heavily lobbied for. It’s unclear what Hawley is seeking to “end”.
The Walt Disney Company has lobbied multiple times to extend certain copyright protections so that their intellectual property would not fall into public domain. The Copyright Term Extension Act of 1998 extended corporate copyright protection from 75 years to 95 years, keeping Mickey Mouse under Disney’s control until at least 2024. These extensions don’t just apply to Disney, though they are the ones pushing the hardest for them.
So by all means, don’t extend copyright terms. Or, hey, even shorten them! But Hawley isn’t going to do that to one single company and he shouldn’t be allowed to do it at all on the basis of speech that he doesn’t like.
While the press and some policy circles have made a large stink the last few years about massive new “bipartisan support for antitrust reform,” we’ve noted that the push isn’t quite what’s being advertised. While some of the bills being proposed might help correct some competitive imbalances online, the push in general is bizarrely narrow and only targets some tech companies under some circumstances.
As a party that’s coddled monopolies (see: telecom, banking, airlines, insurance) for literally 40 years, the GOP support for “antitrust reform” has always been performative. The GOP largely sees “antitrust reform” as a way to gain leverage over social media giants so they can mandate the carriage of race-baiting propaganda, a cornerstone of GOP power in the face of shifting demographics and an aging electorate.
Democratic activists and lawmakers, hoping to push some of these antitrust bills across the finish line, have been debating whether crushing ethics underfoot is worth it. Case in point: some Democrats have chosen to partner with The American Principles Project on antitrust reform, despite the fact the group is jam-packed with no shortage of obvious bigotry:
“Consolidated corporate power is the biggest problem that we’re facing right now in our politics,” said Matt Stoller, research director at the anti-monopoly group American Economic Liberties Project, who regularly works with populist figures on the right, including APP. He said divisions within both parties about antitrust changes mean that supporters “have to cobble together a majority.”
There’s productively working with people you disagree with across the aisle, and then there’s… this. Authoritarians aren’t your friends. It doesn’t usually end well. And, as some other activists note in the piece, allying with bigots who literally want to destroy your constituents and everything they stand for just to pass some very limited reform laws (several of which have very concrete problems) isn’t worth it:
“It doesn’t make sense to work with someone that doesn’t share our values and doesn’t share our goal,” said Jeremie Greer, co-founder and executive director of economic rights group Liberation in a Generation. “I don’t think we’re fighting for the same thing.” Greer argued that the push for antitrust reform is essentially about increasing equality and strengthening democracy — and a group fighting against LGBTQ and minority rights is fundamentally opposed to that work.
Again, having some slightly more fair app stores or more competitive Amazon product listings isn’t going to mean a whole hell of a lot should authoritarians gain power and begin dismantling the law and numerous societal systems in a bid for complete and total domination of their political enemies. And make no mistake, while groups like this dress up far right authoritarianism and bigotry as a rosy-cheeked concern for family values, authoritarianism is very much what we’re talking about.
At the same time, if you’re a large U.S. company in any of a dozen heavily monopolized U.S. industries terrified of antitrust reform of any kind, highlighting these kind of issues in a bid to fracture delicate alliances is something you’d most certainly have your K Street policy and PR shops engaged in right now.
That said, if we’re going to tackle antitrust reform, let’s tackle antitrust reform. Instead, what we’ve wound up with is a bunch of extremely narrow bills that only meaningfully target a handful of companies that the GOP is mad at for belatedly policing political propaganda. And even then, this being the rabidly obstructionist GOP, there’s no guarantee they’ll show up to vote for a bill that actually does anything.
The entire recent “antitrust reform” effort literally pretends that sectors packed with natural monopolies (see: telecom) don’t exist. And while, yeah, I get the argument that some fairly minor progress in one industry is better than no progress at all, that’s not actually true if making that progress involves throwing your entire belief apparatus in the toilet and putting democracy and civility at risk.
Josh Hawley sucks. I disagree with him on about just about everything. And I am appalled by his support of the rioters who invaded the Capitol Building on January 6, 2021. It’s disappointing and shameful that a United States Senator would endorse a riot, especially a riot intended to challenge the indisputably legitimate election of the President of the United States. But the First Amendment says Hawley is entitled to his opinion, and he’s entitled to express it. And he’s entitled to quote other people to make his point.
Surprisingly, some people disagree. On April 10, Mickey H. Osterreicher published an op-ed in the Kansas City Star, arguing that Hawley shouldn’t and can’t use an iconic photograph of himself supporting the January 6 rioters to sell campaign merchandise. I endorse the shouldn’t in spades. Hawley’s actions were embarrassing, and it’s even more embarrassing that he’s capitalizing on them. But I disagree with the can’t. Hawley can absolutely use the photograph. And that’s a good thing.
In a nutshell, Osterreicher’s argument is that the photograph is protected by copyright, so the photographer (or copyright owner?) can dictate how it’s used.
No. That is ridiculously wrong. Yes, whoever owns the copyright in the photo is entitled to control its use, in order to generate a profit. But their rights are limited by the fair use doctrine, which says that people are entitled to use copyrighted works in order to criticize them.
Josh Hawley is using a very well-known photograph of himself to criticize people who criticize him for supporting the January 6 rioters. That is precisely the kind of use the fair use doctrine was intended to protect. In fact, it is the kind of parodic use that the founding fathers used to criticize loyalists in the Federalist Papers.
Fair use ensures copyright doesn’t violate the First Amendment. After all, copyright only regulates commercial speech. Why would anyone file an infringement claim, unless someone was competing with them? We all know that’s wrong. People use copyright claims because they want to silence people they dislike. That’s wrong. And it’s crummy. Some copyright lawyers like to pretend fair use is complicated. Give me a break. Every news organization relies on fair use every time it publishes a quotation.
Is there a copyright problem here? LOL. The photographer wanted to license, but only when convenient.
Let’s tell it like it is. This photographer wants to tell Senator Josh Hawley to shut up. And they want the government to tell him to shut up because they own a copyright on a photograph they took of him without his permission, and they don’t want him to use it.
It’s ok to think Josh Hawley sucks. But don’t be a landlord about it. You made your point, he’s entitled to make his.
We recently discussed noted fascist and fist-raiser Josh Hawley and his campaign’s decision to start selling campaign merchandise using a photo from a Politico photographer. As part of that post, we talked about how the Associated Press was looking into whether this constituted copyright infringement. I very much think it does not, given that the use is for political donations (speech), that it is at least mildly transformative, and there is zero harm done to the news organizations due to its use. On the other hand, I also very much expected a conflict over all of this.
And now here we are, with E&E News, which is owned by Politico, stating that the use of the image was unauthorized and demanding that Hawley stop using it.
“The photo was taken by E&E News photographer Francis Chung. We did not authorize its use by the Hawley campaign for the purpose of political fundraising, which the campaign has been put on notice of by legal counsel,” Politico spokesman Brad Dayspring said in an email. “We eagerly await a response, but in the interim again respectfully ask that the campaign immediately cease and desist unauthorized use of the image,” Dayspring said.
Now the open question is whether Politico is willing to actually move forward with a lawsuit against a sitting Senator over this. Why? Well, based on the campaign’s public response, it doesn’t appear that Hawley’s team has any intention of ceasing and/or desisting.
But, because we live in the dumbest timeline as the kids say, those public comments from Hawley’s team are also dickish in the most on-brand way and more than a little stupid.
“We haven’t received any correspondence from Politico or anyone else, but we are in full compliance with the law,” Hawley campaign spokesman Kyle Plotkin told HuffPost. “Perhaps Politico can show us the correspondence they sent to the many liberal groups who also used the photo.”
You can really feel Plotkin thinking he’s made an actual point here, but he hasn’t. I’ll just let Gizmodo’s Dell Cameron field that one.
Josh Hawley, the waifish fascist Senator from Missouri, has made it onto our pages several times in the past. When he’s not advocating breaking up Twitter because he doesn’t like how a private company is run (fascist), or breaking up lots of other companies he simply disagrees with (fascist), you can typically find him pretending the First Amendment works the exact opposite of how it does in reality or explaining in published books and newspaper pages how much he’s been silenced and canceled. It might all look very stupid on its face, but it isn’t. It’s actually quite diabolical.
Hawley is a graduate of both Stanford and Yale. And, sure, you can convince me that someone can graduate from both of those schools somehow while being an idiot, but that’s not Hawley. When he advocates for fascist policies and generally acts like a right-wing radio talk show host, it’s not because he’s stupid. It’s because he’s an assbag.
See? He’s an asshole. In case you can’t see the image or don’t know what the issue is, that picture of Hawley was snapped by the AP and was him saluting the crowd of strange people protesting outside the Capital building because their preferred candidate lost. Some of those people later stormed the capital in a violent attempt to overthrow the will of the America people. Now Hawley, in a plain bid to generate outrage, is utilizing that picture of him saluting that crowd in order to raise campaign funds. Immediately after the launch of the mug product, his team sent out an email fundraising on it, apparently purely over the joy of making liberals angry, which appears to be one of Hawley’s major policy positions.
Everyone remembers the photo of profa senator Josh Hawley raising his fist to salute the murderous rioters who stormed the Capitol, injured 150 police officers, and tried to hang Mike Pence. Now Hawley is selling a curiously named “Show Me Strong White Coffee Mug” with the same image in an amateurishly designed graphic.
He says its a “perfect way to enjoy Coffee, Tea, or Liberal Tears!” and is “not a pro-riot mug.”
None of this is new or creative. The liberal tears thing is at least as old as Ben Shapiro saying it all the time and is probably older than that. The slogan is lame. And the picture, as Boing Boing goes on to note, is from the AP.
In addition, his mug uses an image based on an Associated Press photograph and is probably a copyright violation. AP told Rolling Stone that it’s investigating. As you might recall, artist Shepard Fairey used an AP photo of Obama a decade ago, and ended up paying AP an undisclosed amount to settle the copyright lawsuit.
And here is where we take the Techdirt turn. The Fairey case was settled out of court, but we argued all along the way that Fairey’s use should have qualified as fair use. I take the same view of Hawley’s use of an AP photo. The use is for raising campaign funds, rather than purely commercial use. The photo is being used as political speech. It’s at least mildly transformative, although not as strongly as Fairey’s, given that most people will recognize where that image is from. And, ultimately, Hawley’s mug represents zero threat to the AP’s business. The AP isn’t selling mugs with the picture on it to those that wish to drink liberal tears.
So while it’s fun to discuss what a jerk Hawley is, trying to pretend that we think this is copyright infringement just because I don’t like him would be disingenuous. And I, unlike Josh Hawley, am not that.
Big Update: It turns out that this was a clerical error on the part of a Senate staffer, and that Elizabeth Warren is not co-sponsoring this bill from Lindsey Graham to repeal Section 230. The Congress.gov site is expected to be corrected and her name removed as a co-sponsor some time soon. I am leaving the original story below for posterity, but it’s good to see that Senator Warren hasn’t gone completely over to the dark side on this.
Original story here:
So, just yesterday I wrote about how Democratic Senators had been shying away from co-sponsoring bills with Senator Josh Hawley. Throughout 2019 and 2020, even as Hawley’s populist fascist tendencies had become abundantly clear, Democrats were willing to partner with him because he was “anti-big tech.” But after January 6th of last year, suddenly Hawley was left shouting on Fox News, rather than teaming up with Democrats to sponsor bills to regulate the internet.
So… it was more than a bit of a surprise that, yesterday, Senator Elizabeth Warren’s name popped up as a co-sponsor on S.2972, a bill from Republican Senators Lindsey Graham, Josh Hawley, and Marsha Blackburn, to literally repeal Section 230.
It’s such a bizarre and nonsensical move. Even for Senators who support reforming Section 230, repealing it seems unlikely to accomplish what they think it will. And, even more to the point, Warren is apparently already aware of how removing Section 230 can cause significant harm. She was behind a previous bill in the Senate that was designed to study the impact of FOSTA on sex workers, after tons of people realized (way too late, and despite widespread warnings from multiple experts) that FOSTA would create massive consequences for the sex work industry (and related industries).
Over the last couple of years, ever since she lost the Presidential primary, Warren seems to have shifted further and further away from the thoughtful Senator “with a detailed plan to fix things” to one who has fully embraced pure, naked, populism for the sake of political gain. She’s especially leaned hard into attacking internet companies in ways that are extremely disappointing. Even if you believe that the big internet companies (and the wider internet itself) require regulation — an argument that is easily defensible — she has embraced truly extreme and unconstitutional positions that generate headlines and screams of support from people who just want to punish big companies, rather than create a better world.
This latest move — teaming up with three extremist Republican Senators — on a bizarrely stupid and dangerous plan to flat out repeal Section 230 makes absolutely no sense at all, and I don’t see how it accomplishes any of Senator Warren’s stated goals. Without Section 230, you end up helping the largest internet companies cement their position, while punishing smaller competitors and killing them with legal liability for things that they didn’t actually do.
This is an unfortunate and cynical move by a Senator who I had thought was better than that.
Karl recently wrote about how Congress’ antitrust efforts are flailing (even with the plan to hold a hearing on Senators Klobuchar & Grassley’s antitrust bill) and one reason why the efforts have stumbled may be Senator Josh Hawley’s decision to really show off his fascist side.
We’ve been pointing out the serious problems with Hawley and his policy ideas since long before January 6th of 2021. Even though it was fairly clear from early on that his hypocritical posturing and populism were little more than a cynical attempt to get the Trumpian base to back his massive ego and ambition for a potential Presidential run, a bunch of Democrats were happy to cynically embrace Hawley because he was “anti-big tech” and willing to hate all the same people that some Democratic Senators hated as well. Of course, January 6th and Hawley’s now infamous raised fist appear to have resulted in Democrats realizing that even if he hates Mark Zuckerberg too, that doesn’t mean he’s worth working with.
By this time last Congress in January 2020, Hawley had partnered with Democrats to lead at least eight letters on tech issues, including with Sens. Richard Blumenthal (D-Conn.), Ed Markey (D-Mass.), Mazie Hirono (D-Hawaii) and Dick Durbin (D-Ill.), then the Senate minority whip, according to a review by The Technology 202. The topics spanned from data privacy to kids? online safety to potential risks posed by tech firms with links to China.
But a year into this Congress, during which his top issues haveonly gainedprominence, Hawley hasn?t led any bipartisan letters on tech policy issues that his office has publicly released, according to a review. All of the new tech bills he?s introduced this past year have been either a solo or Republican-only effort. And of those four bills he co-led early last Congress, only one has been reintroduced ? without him on it.
The article claims that this means that Hawley’s “once-glowing prominence in the debate has faded,” though I question that premise. He’s still out there bashing tech in stupid, nonsensical ways. He’s just doing it on Fox News and to an increasingly ignorant base who still thinks that he can magically ignore the 1st Amendment and force Twitter to allow idiots to spew nonsense. The fact that he can’t actually advance any legislation is kind of meaningless here. Possibly (and this is good) it slows some of the legislation down, but Hawley has never been interested in actually passing legislation in the first place. It was always about getting his name in lights among the right people. And he got his headlines from Democrats who were willing to look the other way on Hawley’s populist/fascist tendencies when it was politically convenient for them. And now Hawley doesn’t need them any more to get the kind of headlines he needs.
The real thing for me is looking at just how cynical Democrats were to join up with Hawley on this prior to last January 6th. It was no secret — certainly not in and around the Senate — about Hawley’s populist/fascist views, and his willingness to stomp all over principles or rights to feed his ambition. But they were willing to do so because it helped them out. It’s good that they’re apparently no longer willing to team up with Hawley to give him any kind of legislative “win” on this topic, but it remains ridiculous that they were ever willing to do so in the past — back before Hawley was so commonly and publicly associated with the insurrection.
