The First Amendment Bars Regulating Political Neutrality, Even Via Section 230
At the end of May, President Trumpissued an ExecutiveOrder demanding action against social media sites forcensoring" conservatives. His Department of Justice madea morespecific proposal in mid-June. Clearly coordinatingwith the White House, Sen. Josh Hawley introduceda bill that same morning, making clear that his LimitingSection 230 Immunity to Good Samaritans Act" isessentially the administration's bill - as called for inthe May Executive Order. The administration is expected to make itsnext move next week: having NTIA (an executive agency controlled byTrump loyalists and advised by a former law professor intent oncracking down on tech companies) ask the FCC to make rulesreinterpreting Section 230 to do essentially the same thing as theHawley bill. These two approaches, both stemming from the ExecutiveOrder, are unconstitutional for essentially the same reasons: theywould put a gun to the head of the largest social media websites,forcing them to give up editorial control over their services if theywant to stay in business.
The First Amendment would not allowCongress to directly require websites to be politicallyneutral" or fair": the Supreme Court hasrecognized that the First Amendment protects the editorial discretionof websites no less than newspapers. Both have the same right todecide what content they want to carry; whether that content iscreated by third parties is immaterial. Hawley's bill attemptsto lawyer over the constitutional problem, using an intentionallyconvoluted process to conceal the bill's coercive nature and topresent himself as a champion of free speech," whileactually proposing to empower the government to censor online contentas never before.
Instead of directly meddling withhow websites moderate content, Hawley's bill relies on twolegal sleights of hand. The first involves Section 230 of theCommunications Decency Act of 1996. That law made today'sInternet possible - not only social media but all websites andservices that host user content - by protecting them from mostcivil liability (and state criminal prosecution) for content createdby third parties. Given the scale of user-generated content -with every comment, post, photo and video potentially resulting in alawsuit - websites simply could not function if Section 230 didnot immunize them not just from ultimate liability but from thelitigation grindstone itself. Hawley knows that all sites that hostuser content depend on Section 230, so he's carefully crafted abill that turns that dependence against them - to do somethingthe First Amendment clearly forbids: to force them to cede editorialcontrol over their services. (Here's a redline showing how Hawley's bill would amend Section 230.)
Second, Hawley claims that his billprotects consumers" by holding companies to theirpromises. In reality, it defines good faith" so broadlythat edge providers" would face a constant threat ofbeing sued under consumer protection and contract laws for how theyexercise their editorial discretion over user content. Given thefines involved ($5,000/user plus attorneys' fees), a singlecourt decision could bankrupt even the largest tech company.
No one should have any illusionabout what Hawley's bill really does: use state power toadvance a political agenda. The bill's complicated structuremerely masks the elaborate ways it violates the First Amendment.Conditioning 230 immunity on opening yourself up to legal liabilityunder consumer protection law is a Rube-Goldberg-esque legalcontraption intended to do what the First Amendment clearly forbids:forcing websites to host user-generated content they findobjectionable.
How the Hawley BillWorks
Section 230(c)(1) says: Noprovider or user of an interactive computer service shall be treatedas the publisher or speaker of any information provided by anotherinformation content provider." These have been called the TheTwenty-Six Words That Created the Internet. Whenwebsites and services are sued for third party content they host,Section 230 allows them to cheaply get lawsuits against them thrownout with a motion to dismiss. Consequently, lawsuits are far rarerthan they would be in a world without 230. Section 230(c)(1) ensuresthat those who create content are the ones to be sued. Courts resolvenearly all 230 cases under this provision.
Republicans have insisted angrilythat all of Section 230 was intended to depend on a showing ofgood faith, including political neutrality; however, the plain textof the statute is clear. Only Subsection 230(c)(2)(A) requires such ashowing - and the statute's operative language doesn'tmention neutrality. As Justice Neil Gorsuch recently declared,When the express terms of a statute give us one answer andextratextual considerations suggest another, it's no contest.Only the written word is the law, and all persons are entitled to itsbenefit." Bostock v. Clayton County, 590 U.S. ___(2020). By proposing to amend Section 230(c)(1) to require both goodfaith and neutrality, Trump's DOJ and Hawley bothconcede that the President's Executive Order and otherRepublican clamoring for immediate legal action are simply wrongabout the current state of the law.
The real aim of Hawley's billis to force the largest social media services to change how theytreat content that serves the MAGA" political agenda -e.g., not labeling Trump's tweets, allowing far-rightprovocateurs to engage in bannable conduct, treating Diamond and Silkor Gateway Pundit as the journalistic equivalents of The New YorkTimes. The bill is almost perfectly tailored to do just thatwhile avoiding damage to smaller, alternative social networks favoredby conservative activists for their anything goes"approach to content moderation.
Hawley's bill applies only toedge providers": websites or services with 30+ millionannual unique users, or more than 300 million unique global users, inthe past year, and more than $1.5 billion in global revenue. Tomaintain 230(c)(1) protections, they would have to attest to goodfaith" - essentially, political neutrality - intheir content moderation practices. Thus, an edge provider has tochoose between two litigation risks: If it voluntarily"exposes itself to suit for the fairness" of its contentmoderation, it cedes editorial control to judges and regulators. Ifit surrenders Section 230 protections, it risks being sued foranything its users say - which may simply make it impossiblefor them to operate.
Trump's Executive Order asksthe Federal Communications Commission to collapse Section 230'sthree distinct immunities into a single immunity dependent on goodfaith" - and then define that term broadly to includeneutrality and potentially much more. The Hawley bill does roughlythe same thing by requiring large edge providers" topromise good faith." Both would change the dynamics oflitigation completely: A plaintiff with a facially plausiblecomplaint would (1) prevail on a motion to dismiss, (2) getcourt-ordered discovery of internal documents and depositions ofemployees to assess good faith" (however that term isexpanded), and (3) force the company to litigate all the way througha motion for summary judgment. Whether or not the plaintiffultimately wins, this pre-trial phase of litigation is where thedefendant will incur the vast majority of their legal costs -and where plaintiffs force settlements. Multiply those costs oflitigation, and settlement, times the millions or billions of piecesof content posted to social media sites every day and you get deathby ten thousand duck-bites." Fair v. Roommates, 521 F.3d1157, 1174 (9th Cir. 2008). That's why Judge Alex Kozinski (alongtime conservative champion once short-listed for the SupremeCourt) declared: section 230 must be interpreted to protectwebsites not merely from ultimate liability, but from having to fightcostly and protracted legal battles." Id.
Having to prove good faith toresolve litigation would kill most social media websites, which existto host content by others. Ironically, it's possible that thebest established social media sites with the biggest legaldepartments might cope; they might even be grateful that Hawley'sbill had made it impossible for new competitors to get off theground. At the same time, if (c)(1) is no longer an immunity fromsuit but merely a defense raised only after great expense, websitesacross the Internet would simply turn off their comments sections.
Today, Section 230 doesn'tdefine good faith." Courts assessing eligibility for the230(c)(2)(A) immunity have defined the term narrowly. See e.g.,BFS Fin. v. My Triggers Co., No. 09CV-14836 (Franklin Cnty.Ct. Com. Pl. Aug. 31, 2011) (allowing antitrust claims); Smith v.Trusted Universal Standards in Elec. Transactions, 2011 WL900096, at *25-26 (D.N.J. Mar. 15, 2011). Hawley's billwould add a five-factor definition of good faith" in anew Subsection 230(c)(3). These factors would give plaintiffs ampleroom to declare that an edge provider had been politically biasedagainst them. Inevitably, courts would have to analyze the nature ofthird-party content, comparing content that had been removed withcontent that had not in order to judge overall patterns.
To maintain 230 protections, an edgeprovider must also agree to pay up to $5,000 damages to users if itis found to have breached its (compelled) promises of neutrality."Three hundred million users times $5,000 is $1.5 trillion dollars,exceeding the entire market cap of Google. The bill also addsattorneys fees, threatening to create a cottage industry oflitigation against edge providers. The mere threat of such massivefines will fundamentally change how websites operate -precisely Hawley's goal.
Perhaps most important is what thebill doesn't say: unlike Trump's Order, Hawley'sbill doesn't directly call on the FTC or state AGs to suewebsites for bias. But make no mistake; his bill would weaponizefederal and state consumer protection laws to allow politicians tocoerce social media into favoring their side of the culture wars. TheFTC might hesitate to bring such suits, because of all theconstitutional problems discussed below, but multiple Republicanattorneys general have already made political hay out ofgrandstandingagainst liberal San Francisco tech giants."They would surely use Hawley's bill to harass edge providers,raise money for their campaigns, and run for governor - orSenate.
A New FairnessDoctrine - with Even Greater First Amendment Problems
The Original Fairness Doctrinerequired broadcasters (1) to adequately cover issues of publicimportance" and (2) to ensure that "the various positionstaken by responsible groups" were aired, thus mandating theavailability of airtime to those seeking to voice an alternativeopinion. President Reagan's FCC abolished these requirements in1987. When Reagan vetoed Democratic legislation to restore them, henoted that the FCC found that the doctrine in fact inhibitsbroadcasters from presenting controversial issues of publicimportance, and thus defeats its own purpose."
The Republican Party has steadfastlyopposed the Fairness Doctrine for decades. The 2016 Republicanplatform (re-adopted verbatim for 2020) states: We likewisecall for an end to the so-called Fairness Doctrine, and supportfree-market approaches to free speech unregulated by government."Yet now, Hawley and Trump propose a version of the Fairness Doctrinefor the Internet that would be more vague, intrusive, and arbitrarythan the original.
In Miami Herald Publishing Co. v.Tornillo, 418 U.S. 241 (1974), the Supreme Court struck down a1913 state law imposing a version of the Fairness Doctrine onnewspapers that required them to grant a right of reply"to candidates for public office criticized in their pages. The Courtacknowledged that there had been a technological revolution"since the enactment of the First Amendment. The arguments made thenabout newspapers, as summarized by the Court, are essentially thesame arguments conservatives make about digital media:
The result ofthese vast changes has been to place in a few hands the power toinform the American people and shape public opinion.... Theabuses of bias and manipulative reportage are, likewise, said to bethe result of the vast accumulations of unreviewable power in themodern media empires. The First Amendment interest of the public inbeing informed is said to be in peril because the marketplaceof ideas' is today a monopoly controlled by the owners of themarket.
Id. at 250. And yet, thecourt struck down the law as unconstitutional because:
a compulsion topublish that which reason' tells them should not bepublished" is unconstitutional. A responsible press is anundoubtedly desirable goal, but press responsibility is not mandatedby the Constitution and like many other virtues it cannot belegislated.
Id at 256.Government-enforced right of access inescapably dampensthe vigor and limits the variety of public debate.'" Id.at 257. Critically, the Court rejected the intrusion into theeditorial discretion [e]ven if a newspaper would face noadditional costs to comply," because:
A newspaper ismore than a passive receptacle or conduit for news, comment, andadvertising. The choice of material to go into a newspaper, andthe decisions made as to limitations on the size and content of thepaper, and treatment of public issues and public officials -whether fair or unfair - constitute the exercise of editorialcontrol and judgment.
418 U.S. at 258. The Trump/HawleyFairness Doctrine would impose the very same intrusion upon editorialjudgments of edge providers. In addition, determining whether awebsite has operated fairly" would be void forvagueness since no editor could know exactly what words would callthe statute into operation." Id. at 247.
The Supreme Court upheld theFairness Doctrine for broadcasters in Red Lion Broadcasting Co. v.FCC, 395 U.S. 367 (1969), but only because the Court deniedbroadcasters full First Amendment protection: Althoughbroadcasting is clearly a medium affected by a First Amendmentinterest, differences in the characteristics of new media justifydifferences in the First Amendment standards." The samearguments have been made about the Internet, and the Supreme Courtexplicitly rejected them.
When the Court struck down Congress'first attempt to regulate the Internet, the Communications DecencyAct (everything except Section 230), it held: our casesprovide no basis for qualifying the level of First Amendment scrutinythat should be applied to this medium." Reno v. AmericanCivil Liberties Union, 521 U.S. 844, 870 (1997). The Court hassince repeatedly reaffirmed this holding. While striking down a statelaw restricting the purchase of violent video games, Justice Scaliadeclared: "the basic principles of freedom of speech and thepress, like the First Amendment's command, do not vary when a new anddifferent medium for communication appears." Brown v.Entertainment Merchants Assn., 564 U.S. 786, 790 (2011). Inshort, Red Lion represented an exception, and even thatexception may not survive much longer.
Social Media Aren'tPublic Fora, So the First Amendment Protects Them
The President's ExecutiveOrder attempts to sidestep the Supreme Court's consistentprotection of digital speech by claiming that social media areeffectively public fora" and thus that the FirstAmendment limits, rather than protects, their editorial discretion -as if they were extensions of the government: It is the policyof the United States that large online platforms, such as Twitter andFacebook, as the critical means of promoting the free flow of speechand ideas today, should not restrict protected speech." TheOrder also cites the Supreme Court's decision that shoppingmalls were public fora under California's constitutionin Pruneyard Shopping Center v. Robins, 447 U.S. 74, 85-89(1980).
But Justice Kavanaugh, leading thefive conservatives, explicitly rejected such arguments last year:merely hosting speech by others is not a traditional,exclusive public function and does not alone transform privateentities into state actors subject to First Amendment constraints."Manhattan Community Access Corp. v. Halleck, 139 S. Ct. 1921,1930 (2019). Pruneyard simply doesn't apply to socialmedia.
Trump's Order cites theSupreme Court's recent decision in Packingham v. NorthCarolina, 137 S. Ct. 1730, 1737 (2017) (social media canprovide perhaps the most powerful mechanisms available to a privatecitizen to make his or her voice heard"), but omits thecritical legal detail: it involved a state law restricting theInternet use of convicted sex offenders. Thus Packinghamchanged nothing: the First Amendment still fully protects, ratherthan limits, the editorial discretion of website operators underMiami Herald and Reno.
Hawley's BillImposes an Unconstitutional Condition
Hawley's bill turns on oneunderlying legal claim more than any other: that Section 230 is aspecial privilege granted only to large websites, and withholding itdoes not violate the First Amendment. The factual claim is false: thelaw applies equally to all websites, protecting newspapers,NationalReview.com, FoxNews.com and every local broadcaster fromliability for user comments posted on their website in exactly thesame way it protects social media websites for user content. Thelegal claim is also wrong.
The Supreme Court has clearly barredthe government from forcing the surrender of First Amendment rightsin order to qualify for a benefit or legal status. In Agency forInt'l Dev. v. All. for Open Soc'y Int'l, Inc., 570 U.S. 205(2013), the Court said that the government couldn't conditionthe receipt of AIDS-related funding on the recipients' adoptionof a policy opposing prostitution (a form of compelled speech). Muchearlier, in Speiser v. Randall, 357 U.S. 513, 518 (1958), theCourt made it clear that denying a tax exemption to claimants whoengage in certain forms of speech effectively penalizes them for thatspeech - essentially fining them for exercising their FirstAmendment rights.
Using Section 230 to coerce socialmedia companies into surrendering their First Amendment rights is nodifferent. Consider how clearly the same kind of coercion wouldviolate the First Amendment in other contexts. Pending legislationwould immunize businesses that re-open during the pandemic fromliability for those who might be infected by COVID-19 on theirpremises. Suppose the bill included a provision requiring suchbusinesses to be politically neutral in any signage displayed ontheir stores - such that, if a business put up, or allowed aBlack Lives Matter sign, they would have to allow a right ofreply" in the form of a sign from the other side."The constitutional problem would be obvious and in no way amelioratedby the voluntary" nature of the immunity program.
Social MediaCompanies Can't Be Forced to Risk Being Associated with ContentThey Find Objectionable
The case against unconstitutionalconditions and public forum status is even clearer for websites thanit would be for retailers or shopping malls, for two reasons. First,social media companies are in the speech business, unlikebusinesses whose storefronts might incidentally post their own speechor host the speech of others. Reno makes clear that websitesenjoy the same First Amendment right as newspapers, and [t]hechoice of material to go into a newspaper, and the decisions made asto limitations on the size and content of the paper, and treatment ofpublic issues and public officials - whether fair or unfair -constitute the exercise of editorial control and judgment."Miami Herald, 418 U.S. at 258.
Second, Pruneyard emphasizedthat shopping malls could expressly disavow any connectionwith the message by simply posting signs in the area where thespeakers or handbillers stand." But users will naturally assumespeech carried by a social network reflects their decision to carryit - just as Twitter and Facebook have been attacked for notremoving President Trump's tweets or banning him from theirservices.
Disclaimers may actually be lesseffective online. Consider the three labels Twitter has applied toPresident Trump's tweets (the first two of which provoked theissuance of his Executive Order).
The firstexample not only fails to clearly disavow anyconnection with the message," it is also ambiguous: it could beinterpreted to mean there really is some problem with mail-inballots.
Similarly, Twitter applied a (!)Manipulated Media" label to Trump's tweetof a video purporting to show CNN's anti-Trump bias. Twitter'slabel is once again ambiguous: since Trump's video claims thatCNN had manipulated the original footage, the manipulatedmedia" claim could be interpreted to refer to either Trump'svideo or CNN's. Although the label links to an event"page explaining the controversy, the warning onlyworks if users actually click through. It's far from clear tomany users that the label is actually a link that will take them to apage with more information.
Finally, when Trump tweeted,in reference to Black Lives Matter protests, when the lootingstarts, the shooting starts," Twitter did not merely add alabel below the tweet. Instead, it hid the tweet behind a disclaimer.Clicking on view" allows the user to view the originaltweet:
And yet Twitter has still beenlambasted for not taking the tweet down completely, a decisioninterpreted by some as an acceptance of the validity of such anextreme position.
Further, disclaimers risk creatingincreased liability; indeed, they may trigger lawsuits from scornedpoliticians. For example, labeling (and hiding) Trump's tweetsprovoked issuance of the Executive Order. In the end, the only trulyeffective way for Twitter to disavow Trump's comments would beto ban him from their platform - precisely what the Hawley billaims to deter.
In this sense, the Trump/Hawleyversion of the Fairness Doctrine is hugely more intrusive thanthe right of reply in the original Fairness Doctrine; it puts edgeproviders in the doubly unconstitutional position of (a) hostingcontent they do not want to host and (b) being afraid even to labelit as content they find objectionable.
Why the Hawley Bill'sGood Faith Requirement Violates the First Amendment
To maintain 230 immunity, edgeproviders would be required to promise to moderate content in goodfaith" - which the Hawley bill defines very loosely ashonest belief and purpose...fair dealing standards, and...[no]fraudulent intent" - in other words, political neutrality(and more). The bill adds this to Section 230's list ofexceptions: Nothing in this section shall be construed toimpair or limit any claim for breach of contract, promissoryestoppel, or breach of a duty of good faith.'' Thus, anedge provider's compelled promises" could beenforced by the Federal Trade Commission, state AGs, or privateplaintiffs under various federal and state consumer protection lawsand common law contract theories. These enforcement mechanisms raiseslightly different legal issues, but they all violate the FirstAmendment in essentially the same way: state action interfering withedge providers' exercise of editorial discretion.
Consumer ProtectionLaw Can't Police Fairness" Claims
Republicans used to opposeweaponizing consumer protection laws against media companies. In2004, MoveOn.org and Common Cause asked the FTC to proscribe FoxNews' use of the slogan Fair and Balanced" as adeceptive trade practice. Republican Chairman Tim Muris respondedpithly: I am not aware of any instance in which the [FTC] hasinvestigated the slogan of a news organization. There is no way toevaluate this petition without evaluating the content of the news atissue. That is a task the First Amendment leaves to the Americanpeople, not a government agency."
Similarly, the Hawley bill wouldnecessarily embroil the FTC, state AGs, and judges in evaluatingthe content ... at issue." Media companies aren'texempt from consumer protection or antitrust laws, but the FirstAmendment makes suing them for how they exercise their editorialdiscretion extremely difficult, if not impossible - which iswhy the FTC has never attempted to police marketing claims abouteditorial practices the way it polices marketing claims generally.
As Chairman Muris noted, generalstatements about fairness" or neutrality"simply are not verifiable. This is why the Ninth Circuit recentlydismissed Prager University's deceptive marketing claimsagainst YouTube. Despite having over 2.52 million subscribers andmore than a billion views, this right-wing producerof 5-minute videos on things ranging from history andeconomics to science and happiness," suedYouTube for unlawfully censoring its educational videos anddiscriminating against its right to freedom of speech."Specifically, Dennis Prager allegedthat roughly a sixth of the site's videos had been flagged forYouTube's RestrictedMode, an opt-in feature that allows parents, schoolsand libraries to restrict access to potentially sensitive (and isturned on by fewer than 1.5% of YouTube users). The Ninth Circuitruled:
YouTube'sbraggadocio about its commitment to free speech constitutes opinionsthat are not subject to the Lanham Act. Lofty but vaguestatements like "everyone deserves to have a voice, and that theworld is a better place when we listen, share and build communitythrough our stories" or that YouTube believes that "peopleshould be able to speak freely, share opinions, foster open dialogue,and that creative freedom leads to new voices, formats andpossibilities" are classic, non-actionable opinions or puffery.See Newcal Indus., Inc. v. Ikon Office Sol., 513 F.3d 1038, 1053 (9thCir. 2008). Similarly, YouTube's statements that the platform will"help [one] grow," "discover what works best,"and "giv[e] [one] tools, insights and best practices" forusing YouTube's products are impervious to being"quantifiable," and thus are non-actionable "puffery."Id. The district court correctly dismissed the Lanham Act claim.
Prager Univ. v. Google LLC,951 F.3d 991, 1000 (9th Cir. 2020). Websites can't besued today for making statements that may sound like offeringneutrality - contrary to Republican claims that they should be,and Trump's call for such lawsuits in this Executive Order. TheHawley bill implicitly concedes this point.
But simply forcing edge providers tobe more specific in their claims about neutrality will notovercome the ultimate constitutional problem. Puffery includesclaims [which] are either vague or highly subjective."Sterling Drug, Inc. v. FTC, 741 F.2d 1146, 1150 (9th Cir.1984) (emphasis added). It would be difficult to imagine a moresubjective marketing claim than one about good faith,"neutrality" or fairness." Ultimately, thereason consumer protection law does not attempt to police marketingclaims about neutrality is not their lack of specificity but theirsubjectivity.
In theory, the FTC might be able tobase a deception case on certain very clear, objective claimsabout editorial practices; that category of deception, however, wouldbe narrow - the use of human moderators to evaluate particularpieces of content or to decide which topics are trending,"or the application of community standards to elected officials, forexample. These deception cases would do little to address thecomplaints of conservatives, and even such narrow complaints might beunconstitutional.
Consumer ProtectionLaw Can't Police Non-Commercial Speech
The FTC can police marketing claimsfor being misleading to the extent they propose a commercialtransaction." Central Hudson Gas & Elec. Corp. v. PublicService Comm'n of New York, 447 U.S. 557,561 (1980);Virginia State Bd. of Pharmacy v. Virginia Citizens ConsumerCouncil, Inc., 425 U.S. 748, 762 (1976). Community standardsdocuments do much more than that: they are essentially statements ofvalues, comparable to Christian retailer Hobby Lobby'sstatementthat the company is committed to [h]onoring the Lord in all wedo by operating the company in a manner consistent with Biblicalprinciples."
Such statements are non-commercialspeech, which is fully protected by the First Amendment under strictscrutiny even when it is misleading. United States v.Alvarez, 567 U.S. 709 (2012). To overcome strict scrutiny, thegovernment must show that the bill is (1) necessary to address acompelling government interest (2) to which the law is narrowlytailored, and (3) that the government uses the least restrictivemeans possible to address that interest. Reed v. Town of Gilbert,576 U.S. 155, 163, 171 (2015). In Miami Herald, the courtnoted that Florida's interest in ensuring free and fairelections" was a concededly important interest,"but had to yield to the unexceptionable, but nonethelesstimeless, sentiment that liberty of the press is in peril as soon asthe government tries to compel what is to go into a newspaper."418 U.S. at 260. The bill also fails on the second two prongs ofstrict scrutiny,
If the Hawley bill passes, the TrumpAdministration will undoubtedly argue that edge providers'community standards are ads for their services. But when speech hascommercial aspects that are inextricably intertwined"with other fully protected speech, that speech is generally fullyprotected. Riley v. Nat'l Fed'n of the Blind of N.C.,Inc., 487 U.S. 781, 783 (1988). For example, corporate statementsendorsing Black Lives Matter receive First Amendment protection evenwhen embedded in marketing claims.
Courts are generally reluctant tolabel content as commercial speech because that denies the speech full First Amendment protection. Although community standards andterms of service may refer[] to a specific product,"they in no way resemble traditional advertising - two of thefactors courts assess in drawing the line between commercial andnoncommercial speech. Bolger v. Youngs Drug Prods. Corp., 463U.S. 60, 66-67 (1983). The third factor, the profit motive -which Hawley harps on in his public statements - is notdispositive: If a newspaper's profit motive weredeterminative, all aspects of its operations-from theselection of news stories to the choice of editorial position-would be subject to regulation if it couldbe established that they were conducted with a view toward increasedsales." Pittsburgh Press Co. v. Pittsburgh Comm'n on HumanRelations, 413 U.S. 376, 385 (1973) (emphasis added).
Pittsburgh Press makes clearthat statements about the way publishers exercise their editorialdiscretion are fundamentally different from statements about thehealth benefits of drug products, for example.
Even if a court decided to treatcommunity standards as commercial speech, the government would stillface an uphill battle. The party seeking to uphold arestriction on commercial speech carries the burden of justifyingit," Bolger, 463 U.S. at 71, n. 20, and mustdemonstrate that the harms it recites are real, and that itsrestriction will in fact alleviate them to a material degree."Edenfield v. Fane, 507 U.S. 763, 771 (1993). Because thegovernment's interest in regulating commercial speech lies inits misleading or false nature, it would have to show that statementsabout a website's editorial practices are misleading. Generalclaims about fairness," however, are simply notverifiable.
Why the GovernmentCan't Compel Disclosures about Editorial Policies
Compelling edge providers to changewhat they say about their community standards violates the FirstAmendment even apart from enforcement of such claims. As a conditionfor maintaining 230 protection, the Hawley bill requires edgeproviders to (1) describe any policies ... relating torestricting access to or availability of [user-generated] material"and (2) promise that the edge provider shall ... designand operate the provided service in good faith." The firstrequirement seems hands-off: it does not directly dictate what anedge provider's terms of service must say. But this is simply atrick of clever drafting: this requirement does not need to bespecific, because the second requirement (good faith")will, in practice, govern both. The two inquiries will collapse intoone, allowing complaints about both the fairness of contentmoderation practices as compared to community standards, and theadequacy of those standards.
As a result, companies would (1)make their community standards as opaque or unspecific as possibleand (2) minimize transparency about content moderation generally(e.g., avoiding public statements or reporting on contentremovals). But relying on good faith" does not solve thecompelled speech First Amendment problem.
Suppose that, instead of suing toenforce Fox News' Fair and Balanced" slogan in2004, Congressional Democrats had proposed a bill like Hawley's:just replace community standards" with editorialstandards" and apply the bill to cable programming networksover a certain size. It would be obvious that the government cannotcompel traditional media companies to describe any policies ...relating to [selection] of [programming] material."
By contrast, the government may(and does) compel food manufacturers to disclose ingredient lists andnutritional information. The First Amendment permits such mandatesbecause they apply to statements of objective fact, not thedisclosure of opinions. This is why the seemingly simple age-basedratings systems for video games and movies have evolved as purelyprivate undertakings. Behind each label is an editorial judgment, anopinion, about how to apply rating criteria. The governmentcan compel neither the rating system overall, nor specificdisclosures about the contents of specific films, nor disclosure ofthe rating methodology. By the same token, it cannot compel websitesto disclose their editorial methodologies, whether implemented byhumans or algorithms. Brown, 131 S. Ct. at 2740.
The Hawley Bill IsDesigned to Chill the Exercise of Editorial Discretion
The Hawley bill proposes fourcriteria for assessing a website's good faith."The first two concern selective enforcement," whether byhumans or algorithms. But what purports to be a regulation only ofmarketing claims would actually, inevitably embroil regulators and/orjudges in evaluating the editorial discretion of edge providers -conduct that would clearly qualify for the full protection of theFirst Amendment as non-commercial speech under Miami Herald.Twitter's alleged political bias in applying its communitystandards is no more actionable under consumer protection law thanwould be Fox News' political bias in its editorial policies.
The third criterion - theintentional failure to honor a public or private promise made by, oron behalf of, the provider" - appears to preserveconsumer protection claims, but its aim is significantly broader. InBarnes v. Yahoo!, Inc., 565 F.3d 560 (9th Cir. 2009), thecourt allowed the plaintiff's suit against Yahoo! to proceed.Barnes sued the company for failing to stop her ex-boyfriend fromposting revenge porn. The court ruled that the company hadessentially waived its Section 230 immunity when its Director ofCommunications promised the plaintiff she would personallywalk the statements over to the division responsible for stoppingunauthorized profiles and they would take care of it."
This promissory estoppel theory waslimited to the particular facts of that case: a clear promise madedirectly to a specific user. The Hawley bill's publicor private promise" language could be read to allow plaintiffsto set aside Section 230 immunity and sue edge providers for far moregeneral statements about content moderation practices that wouldnever qualify for promissory estoppel. By holding companies to everypast statement, the Hawley bill aims to stop companies from changingtheir content moderation policies over time as new challenges emerge- a critical dimension of any company's editorialdiscretion.
The fourth criterion - anyother intentional action taken by the provider without an honestbelief and purpose, without observing fair dealing standards, or withfraudulent intent" - seems tailor-made for a law schoolexam on the void for vagueness" standard. In particular,it is considerably more expansive than the narrow standard theSupreme Court set forth in Central Hudson Gas Elec. v. PublicServ. Comm'n, 447 U.S. 557 (1980), for regulating commercialspeech: there can be no constitutional objection to thesuppression of commercial messages that do not accurately inform thepublic about lawful activity." In other words, the Court allowsthe regulation of commercial speech only because of its effects,not its intent. Applying a subjective, rather than an objectivestandard, would make litigation significantly easier. Thus, thiscriterion would not be constitutional even if it were applied solelyto commercial speech. But as we have already seen with the Fox Newsexample, there would be no way to apply this standard withoutevaluating the content ... at issue," as FTC ChairmanMuris put it.
The BillUnconstitutionally Targets Specific Websites
The bill applies to edgeproviders," defined as providers of a website, mobileapplication or web application with more than $1.5 billion in globalrevenue and more than 30 million U.S. users or more than 300 millionglobal users, that have accessed the site by any means in the pastyear. This tailors the bill to apply to just a handful of services:Google (Alphabet), Apple, Facebook (including Instagram and Whatsapp)and Amazon (the so-called GAFA") as well as Twitter,eBay, Microsoft, Apple, and TikTok (because the revenue threshold isglobal). Reddit, Flickr, and Etsy would meet the user thresholds butnot the revenue thresholds. Wikipedia wouldn't be coveredbecause it's a non-profit.
What may at first seem like asensible way to focus the effect of the bill actually creates a hostof problems. First, it's possible that, despite posing anexistential threat to Big Tech" companies, Hawley'sbill could actually protect them from competition. By penalizingsmaller market entrants for getting too big, Hawley's billcreates an incentive for small players to get bought-out by theirbig tech" counterparts before crossing Hawley'ssize threshold - big companies better equipped to handle thelegal risks Hawley's bill would create.
The bill's scope raises threedistinct constitutional problems. First, singling out a small groupof websites provides further reason for applying stricter scrutiny.Minnesota's ink and paper tax violates the First Amendment notonly because it singles out the press, but also because it targets asmall group of newspapers.... And when the exemption selectssuch a narrowly defined group to bear the full burden of the tax, thetax begins to resemble more a penalty for a few of the largestnewspapers than an attempt to favor struggling smaller enterprises."Minneapolis Star, 460 U.S. at 591-92. Applying taxes only tolarge newspapers poses a particular danger of abuse by theState." Arkansas Writers' Project, Inc. v. Ragland, 481U.S. 221 (1987).
Hawley's bill poses a dangerof abuse" by focusing on only the largest social networks -all of the ones conservatives complain about being biasedagainst them - while excluding sites with a laissez-faireapproach to content moderation, where extremist right-wing contenthas been allowed to flourish, such as Reddit.The relatively high revenue threshold excludes Reddit as well asother popular social media sites like Yelp (business reviews), IMDB(movie reviews), Fandom (a hosting platform), and Pinterest. The userthreshold also excludes smaller social networks that have becomegathering places for the Alt Right, like Gab (1.8million monthly users users) and Minds (1.25million users total).
The bill might apply towebsites for traditional media, but even this is difficult topredict. Websites the largest newspapers and cable channels all meetthe monthly user threshold, but won't qualify for the revenuethreshold if separate corporate digital divisions are treated as theedge providers" covered by the bill. In theory, it mightbe possible to pierce the corporate veil" to argue thatthe parent companies' revenue should be counted, but this isnot what the bill says - which further suggests the billis tailored to social media sites. In any event, including some largetraditional media websites in its scope wouldn't come anywherenear making the bill broad enough to avoid the concerns ofMinneapolis Star or Arkansas Writers' Project.
Second, the bill applies only to aparticular subset of Internet media - websites, apps andservices that host user content, not services like Netflix or nonInternet media. On its own, this all but ensures that the bill wouldbe subject to strict scrutiny - which it would surely fail. SeeTurner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994)(Regulations that discriminate among media ... often presentserious First Amendment concerns."); Minneapolis StarTribune, Co. v. Minnesota Commr of Revenue, 460 U.S. 575, 583(1983) (a tax applied only to newspapers).
Arguably, a bill that appliedequally to all interactive computer service providers"would be less problematic because it would not single out asmall group" of sites for what amounts to punishment.Abandoning user count or revenue thresholds would avoid the problemof retaliatory targeting, but additional First Amendment problemswould remain.
Hawley's BillWould Backfire Against Conservatives
It's impossible to anticipate,ex ante, the net effect of the law upon the decision-making ofeach social media service - i.e., whether they will domore or less moderation, and whether conservatives would actuallybenefit overall. The chief purpose of Section 230 was to avoid theModerator's Dilemma," created by StrattonOakmont, Inc. v. Prodigy Services Co., 1995 WL 323710 (N.Y. Sup.Ct. 1995). The court held Prodigy more liable because itactively engaged in content moderation to create a family-friendly"service. If edge providers fear that removing certain content mayincrease their legal risks, they will moderate less. On the otherhand, they may calculate that more moderation will allow themto claim a more consistent approach.
That the same law could producediametrically opposite results is not at all unusual in FirstAmendment jurisprudence. This is precisely the constitutional problemwith vague laws: they are both unpredictable and highly subject tomanipulation by those charged with enforcement.
Empowering the government todetermine political neutrality cuts both ways. Discouraging edgeproviders from moderating incendiary or abusive speech from the rightwill have the same kinds of effects on the left. Democrats will justas easily claim bias" when speech they like is removed.Consequently, social media sites will hesitate to take down contentfrom Antifa or radical anti-police activistsfor fear that a Democratic FTCor state attorney general will suethem.
More generally, if Republicans startsuing edge providers for failing to deliver on the claim ofneutrality required by the new Hawley bill, you could count onDemocrats - when they have the chance - to start suingsocial media operators for not living up to other provisions in theircommunity standards. Consider Twitter's Community Standards:
Twitter has made an editorialdecision not to remove tweets posted by President Trump that seem toviolate all of these prongs (minus the one about child sexualexploitation). The First Amendment clearly protects their right tomake that decision, but if the government could hold a company tosuch statements about its editorial practices, as Hawley claims,without violating the First Amendment, why couldn't aDemocratic FTC make the same argument about Twitter not living up toits promise to enforce its community standards? Indeed, Facebook hasbeen heavilycriticized by groups on the left for failing to domore to take down racist content that may even incite users toviolence.
For better or worse, the FirstAmendment prevents the government from forcing Facebook, Twitter orany other social media sites to change how they favor, disfavor, orremove user content. But if Hawley's bill were somehow to passnow, it could just as easily be used by a Biden administration topressure social media sites to take down right-leaning content in theyears it would take for the complex legal questions outlined here towork their way through the courts.
The Problem"for Republicans Isn't 230, but the First Amendment
In the end, Republicans'complaints aren't really about Section 230, but about the FirstAmendment. Yes, Section 230 protects websites from liability for usercontent - death by ten thousand duck-bites."Roommates, 521 F.3d at 1174. While the Hawley bill and Trump'sExecutive Order both make edge providers liable for what users say,this is only a means to an end; their real focus is not on thedecision made by edge providers to host potentially unlawful content,but on their decision not to host content they deemobjectionable. That decision is one the First Amendment protects asfully for websites as it does for newspapers or Fox News.
Trump, Hawley and other Republicanswould do well to remember what President Reagan said when he vetoedlegislation to restore the Fairness Doctrine back in 1987:
We must notignore the obvious intent of the First Amendment, which is to promotevigorous public debate and a diversity of viewpoints in the publicforum as a whole, not in any particular medium, let alone in anyparticular journalistic outlet. History has shown that the dangers ofan overly timid or biased press cannot be averted throughbureaucratic regulation, but only through the freedom and competitionthat the First Amendment sought to guarantee.
Republicans should ask themselves:WWRD-What Would Reagan Do?" The answer should, bynow, be clear: Congress shall make no law..."