You might expect to have your speech suppressed in Communist China. But in the United States? That should be unthinkable. Unfortunately, it now happens every single day in the digital public square.
The targets are usually conservatives, and we can and must fight back by reforming an outdated law adopted long before the rise of social media.
When President Trump thumped Hillary Clinton in 2016, Big Tech companies like Google, Facebook and Twitter came under immense pressure from left-wing activists, who blamed them for enabling his election. These activists demanded that firms implement much tougher content-moderation standards, including the removal of any user posts deemed to be false, misleading or “hateful.”
Tech honchos like Twitter’s Jack Dorsey caved to these demands. The results: YouTube demonetizing and limiting reach for conservative content; Google rigging its search results to suppress conservative views; Twitter banning Senate Majority Leader Mitch McConnell for posting a video of lefty protesters threatening violence against him; TikTok banning influential pro-life accounts; and Facebook blocking all “misinformation” related to COVID-19, including a Post op-ed arguing that the virus may have escaped from a Chinese lab.
Now, Twitter has even begun “fact-checking” the leader of the Free World and restricting access to his tweets, raising serious concerns of election meddling.
Big Tech companies occasionally reverse course on these decisions, but only when the victim is someone with influence. For most people, it’s tough luck. In 2019, the White House announced it had received more than 16,000 credible reports of online censorship.
But it gets even worse: Our government effectively subsidizes these firms. Thanks to Section 230, a provision in the 1996 Communications Decency Act, Big Tech companies enjoy near complete immunity from civil liability. That special protection would make more sense if these platforms were providing a public square, allowing users free speech and free expression. But instead, they appear to be dead-set on picking winners and losers, promoting the speech they like and suppressing the viewpoints they don’t.
If that’s so, why provide an anti-lawsuit subsidy at all? What’s in it for the American people?
Trump has called on Congress to amend Section 230. The 25-year-old law doesn’t function as it should today, especially as it relates to Big Tech.
My organization, the American Principles Project, has released a blueprint for Section 230 reform. We argue that Section 230 should be amended to incentivize Big Tech companies to provide an authentic digital public square, where free speech is cherished. Our proposal maintains Section 230 immunity for most Web sites but makes it conditional for the largest, market-dominant platforms.
Consider a company like Google, which owns more than 90 percent of the global market share for online search. That kind of power over the free flow of information is incredibly dangerous. With a single algorithmic tweak, Google could change the course of events.
That should frighten us all. But Google, like any Big Tech platform, relies heavily on Section 230 to protect itself from legal exposure. It’s a benefit that bolsters its near $1 trillion market valuation. Google needs that subsidy, and we need to prevent the information game from being rigged.
So, let’s make a deal.
Our proposal is simple: Attach strings to the subsidy. Market-dominant companies would receive immunity as long as they allow speech on their private platforms that would be otherwise constitutionally protected on a public sidewalk.
Then, rather than relying on some alphabet-soup government agency for enforcement, we would create a private right of action for users who could demonstrate that their speech was unfairly suppressed online.
If found by a court of law to be restricting speech, a platform would have a choice: Either pay a set amount of damages, or, if it would prefer to exercise its right as a private company, forfeit its immunity and open itself up to libel and other liability for user-generated content.
We believe the incentive here is obvious. This amendment would strongly encourage market-dominant Big Tech companies to revert to the pro-free-speech posture they took prior to the 2016 election. And, as a reasonable condition to an extraordinary government subsidy, it would be entirely constitutional.
Trump is right. It’s time to reconsider our approach to Big Tech. Congress should take advantage of this opportunity by fixing Section 230 and protecting a bedrock American value.
Jon Schweppe is the director of policy and government affairs at American Principles Project.