Senators Ask Amy Klobuchar To Fix The Content Moderation Loophole In Her Antitrust Bill

We've been pointing out for a long time now that the main antitrust bill making its way through the Senate has a hidden content moderation trojan horse in it. Indeed, it seems likely the main reason the bill has significant Republican support is that they know the bill will be abused to file vexatious lawsuits over content moderation decisions, attempting to get around Section 230 by claiming the decisions were actually anti-competitive. Senator Ted Cruz has admitted he supports the bill because it will unleash the trial lawyers" to file lawsuits about content moderation against internet companies.

The Democrats supporting the bill more or less know this. The bill's author in the Senate, Amy Klobuchar, had a chance to fix these issues, but instead chose to pander even more to Republicans by carving out the finance and telco sectors from the bill's impact, while leaving in the problematic language that will be abused for content moderation purposes.

As the drumbeat about this problem has gotten louder, it's good to see four Democratic Senators step up and say that this issue needs to be fixed. Senator Brian Schatz, along with Senators Ron Wyden, Ben Ray Lujan, and Tammy Baldwin, have written a letter to Klobuchar, just asking her to fix this one thing in the bill.

As they note, since (the non-disingenuous...) supporters of the bill keep insisting that it's not meant to impact content moderation at all, there shouldn't be any problem with amending the bill to make that absolutely clear.

Our understanding is that you do not intend for the bill to limit content moderation in this way, and we want to work with you to fix this issue. We certainly acknowledge that reasonable minds may disagree about the meaning of this provision, and that is precisely why adding the suggested clarification below to the bill makes sense. We believe that adding the following text to the ofRule of Construction (Section 5) will resolve the issue by simply spelling out what we understand is our shared intent:

Protection for Content Moderation Practices.-Nothing in section 3(a)(3) may be construed to impose liability on a covered platform operator for moderating content on the platform or otherwise inhibit the authority of a covered platform operator to moderate content on the platform, including such authority under the First Amendment to the Constitution of the United States, section 230(c) of the Communications Act of 1934 (47 U.S.C. 230(c)), or any other provision of law.

That language would be a big improvement. And while it won't fully stop frivolous lawsuits, it would help get most of them dismissed earlier.

So, now the question remains: will Klobuchar accept this fairly straightforward suggestion? Because if she doesn't, she seems to be acknowledging the open secret: that many of the Republicans are supporting this bill because they want it to be abused in a manner around content moderation.

Either way, kudos to these four Senators for standing up and asking Klobuchar to do the right thing.