There is a storm of emotion around this.
I don’t trust the bureaucracy that tried to undermine the valid results of our free and fair election to be an arbiter of commentary, but more on that later. I have so many questions, including: Would modifying or removing immunity in 230 affect all “interactive computer services?” Wouldn’t this affect things like Craigslist, Yelp, (Yelp and Armslist already went to court). Could it be argued that site proprietors are then liable for their comment sections? If this is the case, website comment sections will be forced to disappear. Craigslist, Instagram, Snapchat, so much more will be affected. The daily, listener-run chat for my radio program will be shut down.
Senator Josh Hawley says that Section 230 of the Communications Decency Act provides social media companies like Twitter with a special exemption that other entities like Fox News, others do not enjoy. The way Hawley says it, excluding social media companies from Section 230 simply removes immunity from criminal or civil suits. Is it that simple? What are the repercussions? I’ve wrestled with this issue from the beginning and have discussed it extensively on air. As a limited government conservative, I outright oppose any efforts of the federal government to regulate private businesses. It feels, in a way, like a grander version of demanding that a business owner bake the cake.
Congressman Matt Gaetz suggested on Tucker Carlson’s show that tech could be regulated like a public utility. Section 230 doesn’t mandate neutrality, not anywhere in the word of the law. Regulating the Internet as a public utility is what Net Neutrality attempted to do. That wasn’t exactly a conservative position (here’s Joe Biden on the issue).
Then there’s this from The Volokh Conspiracy:
For all the passion it has unleashed, President Trump’s executive order on section 230 of the Communications Decency Act is pretty modest in impact. It doesn’t do anything to undermine the part of section 230 that protects social media from liability for the things that its users say. That’s paragraph (1) of section 230(b), and the order practically ignores it.
Twitter has been around for nearly 15 years; in the beginning no one cared what it did because it didn’t have the power to be a policy player, or influence elections. Times have changed. By itself, Twitter didn’t possess the power to affect such political issues, its users drove that power; by Twitter “fact-checking” tweets, Twitter has effectively put their hands on the wheel. Are they an entity now, by themselves alone? Or are they trying to hide from this distinction from behind their users, people they say set the stage, but, as it turns out, that isn’t entirely true, either. Through algorithms, shadow-banning, and other techniques, Twitter has taken what was once organic, free-for-all conversation and shaped it according to the predilections of its staff, people like Yoel Roth (whom the President is discussing in the screengrab above), ironically head of Twitter’s Trust and Safety department. Roth’s past Tweets were discovered. The issue isn’t with Roth’s Tweets themselves, but the nature of his Tweets, the double standards Twitter inconsistently enforces, and whether or not someone this polarizing has the ability to carry out his duties in the objective manner, the manner by which Twitter claims to operate. People who’ve watched James O’Keefe’s expose or had their accounts suppressed, suspended, or deleted altogether for offenses not defined or included by Twitter’s terms of service have a lot of trouble believing that. Honestly, I do, too.
Randy Barnett posed one of the few persuasive points I’ve seen:
I’m not sure it’s right, but I’m also not sure it’s wrong. I’d like to read some thoughtful long form analysis on both sides. But this category has existed for a very long time, and our laws regulating “public accommodations” law depends on it.
— Randy Barnett (@RandyEBarnett) May 28, 2020
This seems more persuasive to me than other arguments I've seen. I'm always wary of regulation, particularly in the arena of speech.
— Dana Loesch (@DLoesch) May 28, 2020
This from Preston Byrne is where I’m at right now in my thought process:
This dog won't hunt. The Section 230 exemption applies to any web based communications – comment sections, Yelp reviews, whatever. If you yank it for Twitter, you yank it for anyone else.
I want to be able to moderate contents on my own website.
— Preston Byrne (@prestonjbyrne) May 28, 2020
Annnnd this is precisely where I’ve been landing.
— Dana Loesch (@DLoesch) May 28, 2020
So where from here? If you’re opposed to government regulating a large and influential private entity because the entity operates according to the partisan politics of the owners and/or staff, what is the solution? It’s a private entity. After everything we saw with the FBI and even within the DOJ regarding the Russia/Trump witch hunt, are we seriously considering giving government agencies the authority to regulate the final frontier of speech? If anything, that all of these government agencies were fueled with bitter partisanship makes me realize how much more responsibility we should assume back from the federal government. Here we are talking about giving them more control. To put it quite simply, I don’t trust the government to tie a shoe and I definitely do not trust it to determine winners and losers in publishing. I’m too battle-scarred for that. Trump has been careful to prioritize the individual over the state, most definitely witnessed in his pandemic response so I’d like to give him the benefit of the doubt more than I’d perhaps give to others attempting to influence him, for better or for worse, in the punditry circuit. Maybe he’s playing chicken with Twitter.
So what then, impose anti-trust laws? Some have proposed this as a more sensible solution than modifying or dissolving immunity via section 230. But this only reignites the debate on the incompatibility between antitrust laws and laissez-faire capitalism. While all this takes place, we’re still left with a large and influential digital entity (entities, really) that can absolutely affect the outcome of an election, the news cycle, even perhaps foreign policy. I’m in search of an answer and unopposed to good arguments.
On my radio program I discussed what an across-the-board removal of section 230 immunity would look like: