Here’s A Small-Government Solution To Section 230’s Big Tech Problem

Big Tech has a serious censorship problem. President Trump announced last July that the White House had received more than 16,000 credible reports from users alleging they had been wrongfully censored or barred from access to digital platforms.

Every major platform, from Twitter to TikTok, has been involved in multiple high-profile controversies that call their moderation practices into question. Even the trustworthiness of Google Search is now in doubt after investigative reporting by the Wall Street Journal found incidents of blacklisting, algorithm tweaks, and manual meddling with certain “incendiary” search results.

Despite enormous evidence of partisan tomfoolery, the Big Tech companies want you to suspend your disbelief. They continue to claim they are neutral arbiters of user-generated content, that they favor no political ideology or cultural viewpoint over another, and that they simply exist to facilitate online communication.

They need the American people to accept this argument at face value. Otherwise, we might object to one of the most lucrative sweetheart deals ever offered to private industry by the U.S. government: Section 230 of the Communications Decency Act.

Section 230 Has Granted Unconditional Immunity

Passed by Congress in 1996, Section 230 granted “interactive computer services” immunity from civil liability for content posted by users on their platforms. The law’s original intent was to grant platforms, as we now refer to them, the ability to remove pornographic content while still offering “a forum for a true diversity of political discourse … and myriad avenues for intellectual activity.”

In other words, Section 230 was part of a trade-off. Platforms would be protected from users employing any sort of private right to action, and in return, they would provide a digital version of the public square, one that advances First Amendment values such as free speech and expression.

That’s not how the law played out, however. Today, Section 230 is interpreted to provide platforms with unconditional immunity from civil liability, regardless of whether those platforms keep their side of the bargain. This is the legal foundation upon which much of Big Tech is built. Now, as a result, a few multinational companies with a monopolistic stranglehold on our discourse appear to be using their position to impose an Orwellian choke-hold on the free flow of information.

It should come as no surprise then that many conservatives are now proposing radical means to go after Big Tech. Laura Ingraham and others have called for regulating all aspects of the Internet as a public utility. Other conservatives, including multiple prominent elected officials, have suggested the government should consider pursuing antitrust action.

“Techlash” isn’t just limited to the right. A number of progressives have quietly suggested doing away with Section 230 altogether. Others, such as Sen. Elizabeth Warren, D-Mass., and Rep. Alexandria Ocasio-Cortez, D-N.Y., have instead demanded that platforms step up their censorship game by restricting any and all political speech deemed false by progressive orthodoxy.

While the left and right become even more entrenched, and free enterprise devotees spar with free speech acolytes, there is an elegantly simple solution to this dilemma. We shouldn’t repeal Section 230, but we should certainly rewrite it.

Platforms and Publishers Are Different

Let’s start by clearly delineating between “platforms” and “publishers.” If a company wants to create an open forum or platform that adheres in good faith to a First Amendment standard of free speech and expression, they can do that. If they want to selectively edit and present a particular point of view and be a publisher, they are free to do that as well.

But only the former should receive special immunity from civil liability, for the same reason it was granted in the first place — to promote the flourishing of speech and ideas. The open forum is presenting itself as a digital version of the public square. The publisher is not, and therefore it is reasonable for it to assume some legal responsibility for its content.

Who decides what qualifies as a platform shielded from civil lawsuits? While some have proposed giving this power to a regulatory body, such as the Federal Trade Commission, a smaller government approach would dictate leaving it up to the courts. The major problem with Section 230 as currently written is that it denies a right of private action even to users who have a legitimate case that they have been wrongly censored or barred from participation in the digital public square.

But by making Section 230 immunity conditional on platforms adhering to First Amendment principles, potential plaintiffs who have been unjustly censored or blocked would have their right of private action restored. It would then be on the plaintiffs to demonstrate that a Big Tech company was using its market power to unfairly rig the opinion marketplace.

If they could properly demonstrate that, the company would have two choices: either pay a set amount of damages to the plaintiffs but continue operating as a platform with conditional immunity, or waive the immunity by declaring publisher status, dismiss the cases at hand, and then be faced with the same liability news media have to endure — risking an avalanche of defamation lawsuits naming the company as a defendant because of speech published by the company’s users.

The First Amendment Should Dictate Self-Regulation

Obviously, companies with nine- or 10-figure valuations have no interest in exposing themselves to such enormous liability, so they would be incentivized to avoid damages — and maintain their protected platform status — by proving they are using the First Amendment as a template in a new direction of responsible self-regulation. No more censorship of lawful, “politically incorrect” speech by Big Tech elites in Silicon Valley.

Mirroring the explosion of printing and information with the 16th-century Gutenberg press, the mammoth internet platforms would be nudged toward aspiring to higher ground, advancing the dissemination of opinions rather than suffocating them. That’s something we all should be able to get behind.

If we are going to provide Big Tech with a sweetheart deal, it must be a deal that also works for the American people. That means Big Tech needs to hold up their end of the bargain by defending the values of free speech and expression online in the digital public square.