Missouri's Newest Senator Apparently Can't Read The Law, Pushing For Greater Censorship

Missouri's incoming Senator, Josh Hawley, has been getting some attention as being a "fierce critic" of big internet companies. Specifically, in his role as Missouri State Attorney General, he famously launched an investigation into Google, sending a subpoena that had many of the same hallmarks found in the subpoena Mississippi's Attorney General Jim Hood sent to Google years earlier, that was later revealed to have been drafted by MPAA lawyers as part of their Project Goliath, in which the MPAA deliberately used a NY Times article about using state AGs to attack competitors to do just that. As a reminder, a judge eventually found that subpoena to be in bad faith and Hood withdrew it.

Still, given that Hawley specifically campaigned on being willing to "stand up to big tech", it's really no surprise that he's now going around yelling about Twitter temporarily suspending a user (who happens to play on the same red/blue team as Hawley). The problem is that Hawley -- who as a lawyer, Attorney General, and incoming Senator should be expected to know the law -- actually gets its entirely backwards.

The new Congress needs to investigate and find out. Twitter is exempt from liability as a "publisher" because it is allegedly "a forum for a true diversity of political discourse." That does not appear to be accurate.

- Josh Hawley (@HawleyMO) November 27, 2018

Hawley here is not just misreading CDA 230, he's literally getting the law backwards. The key part of CDA 230 says:

(c) Protection for "Good Samaritan" blocking and screening of offensive material
(1) Treatment of publisher or speaker
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(2) Civil liability No provider or user of an interactive computer service shall be held liable on account of-

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

There is nothing in the law, whatsoever, that says you only get CDA 230 immunity if you are "a forum for a true diversity of political discourse." Nothing at all. If that were the law, then it would exclude CDA 230 protections from... almost every site. Including tons that Hawley probably supports.

And as a detailed article at the Verge highlights, removing CDA 230's protections will lead to significantly more censorship. People are so confused about CDA 230, and it's unfortunate because the law is not hard to understand. It's almost as if many are deliberately misrepresenting what's in the law. CDA 230 says that interactive computer services are not liable for what 3rd parties write on their platforms and that they cannot be made liable based on their moderation choices.

Without that protection, companies would have the incentive to censor much more broadly, because if they left content up that potentially violated the law, the platforms themselves could be held liable for it. So it is utterly bizarre that Hawley (or his soon to be colleague Ted Cruz) continue to get this aspect of the law so wrong.

They continue to insist the law says the exact opposite of what it does, and what they support would create the world they are currently complaining about (even though it doesn't currently exist). As Reason points out, if Hawley were to get his own wish, it would actually lead to more purges of conservatives on social media.

The whole situation is so perplexing. Either it's all grandstanding, to give their base some "anti-big-tech" messaging, or they're literally ignorant. Neither is a good look.