A simmering battle between Big Tech and President Trump came to a head earlier this month when the president issued an executive order  aimed at curbing social media bias. The order came after the president and a number of others on the Right opined  publicly about Big Tech putting “their thumb on the scale for the political left” ahead of November’s election. However, before going any further, the administration should consider the long-term effects of this move.
A highly regulated internet, which fails to rely on the free market principles that conservatives hold dear, could stifle more conservative speech than it protects.
The president has embraced social media to speak directly to his millions of followers more than any other politician to date. In many respects, this is thanks to a previously obscure portion of law known as Section 230. This law limits the liability that online platforms face for hosting and moderating content that users create. Prior to this law, platforms faced a tough dilemma: moderate  everything or nothing at all. Section 230 freed platforms from this “moderator’s dilemma” and simultaneously flipped the paradigm of traditional broadcast media.
Indeed, for a long time before social media came to be, conservatives bemoaned traditional media for its liberal tilt. However, social media gave conservatives a platform where they could establish brands on their own terms and create their own ecosystem. Big names, including Tomi Lahren, James O’Keefe, and Dennis Prager, built massive social media followings they almost certainly could not have achieved relying solely on television or print. The freedom to moderate (or not moderate) online content, enabled by Section 230, very much built the media framework that put Trump and other Republicans into office.
But as more users share information and connect online, moderation practices enabled by Section 230 have come under scrutiny. There are reasons to suspect that implicit biases  may make their way into moderation decisions. But regardless of the extent of anti-conservative bias, there have at least been anecdotal cases of speech from conservatives being removed from platforms, while speech from more liberal groups and individuals has not. As a result, many conservatives feel victimized by Section 230 and are looking for ways to fix it.
Unfortunately, Trump’s designee in this fight, Sen. Josh Hawley (a Republican from Missouri), seems to either not understand the “moderator’s dilemma” or not care about the nuances of content moderation.
His new bill  would revoke the protections of Section 230 from platforms with over 30 million U.S. users and $1.5 billion in global revenue, unless they disclose, in advance, the policies they use for moderating content, and also pledge to follow that policy down to the letter without any “intentionally selective enforcement.” Any failure to make good on that promise opens up the provider to damages of at least $5,000 per user. That means that even if these platforms maintain Section 230 immunity, they’re no less immune to frivolous lawsuits. Rather, the clearly defined immunity Section 230 provided would be replaced by a legally ambiguous “good faith” standard.
To win these legal battles would be no relief, either, as platforms will still have wasted time and money on these cases and likely stalled any decisions about updating their moderation policies in the meantime. Keep in mind that this bill would disincentive platforms from moderating content for fear of lawsuit. Your favorite social media platform could end up flooded with spam and other undesirable content, drowning out many voices.
However, many of these social media companies are risk averse, meaning that platforms will likely opt-out of these new perverse Section 230 “protections” that would allow the proliferation of lawsuits and instead over-remove content, restrict the ability of users to post, or abandon attempts at moderation altogether in order to avoid liability. Some platforms may also over-moderate inflammatory content that could be considered defamatory because the victim of the speech will have every right to a lawsuit.
In short, toying with liability protections is sure to backfire . If platforms over-moderate content, it will stifle the voices of many, including conservatives. While some big conservative names could pivot back to traditional media , many voices who don’t fit within traditional media will not be able to leverage social media to raise their public profile.
If the situation sounds dire, that’s because it is.
Fortunately, we don’t need to find out. As both Trump and Hawley have ignored thus far, a traditional Republican solution to many problems works equally well here: the free market.
Users do not have to use Twitter or Facebook. There are myriad other social media applications available today. If, for example, the president announces he will be taking his Twitter talents to Gab, the right-wing social media platform that already exists today, thousands of users would follow him to the new service. And even if no platform fits perfectly, the costs of creating  a rival social media service are relatively low, and conservative networks exist irrespective of any one service.
While many conservatives are worried about social media bias, we must be extremely careful when altering the legal regime that created the modern internet, as even seemingly minor changes can have a drastic impact on internet speech. But if these concerns warrant a response, let’s rely on the free market principles that for so long have guided conservatives and led to the success of the global internet to date. Without it, those worried about social media bias might remember the words of Randy Bachman: You ain’t seen nothing yet.
- “executive order”: https://www.lawfareblog.com/will-trumps-executive-order-harm-online-speech-it-already-did
- “opined”: https://www.youtube.com/watch?v=PFgsYCQtML8
- “moderate”: https://www.rstreet.org/2018/03/21/the-roots-of-section-230-show-why-we-shouldnt-abandon-intermediary-liability-protection/
- “implicit biases”: https://www.rstreet.org/2019/12/05/when-it-comes-to-content-moderation-weve-been-focusing-on-the-wrong-type-of-bias/
- “bill”: https://www.hawley.senate.gov/sites/default/files/2020-06/Limiting-Section-230-Immunity-to-Good-Samaritans-Act.pdf
- “backfire”: https://www.nationalreview.com/magazine/2020/06/22/why-we-need-section-230/
- “traditional media”: https://www.oxfordscholarship.com/view/10.1093/oso/9780190923624.001.0001/oso-9780190923624-chapter-14
- “creating”: https://www.washingtonexaminer.com/opinion/trump-wants-an-unbiased-social-media-platform-he-should-have-the-government-make-one