Archives For section 230

In our previous post on Gonzalez v. Google LLC, which will come before the U.S. Supreme Court for oral arguments Feb. 21, Kristian Stout and I argued that, while the U.S. Justice Department (DOJ) got the general analysis right (looking to Roommates.com as the framework for exceptions to the general protections of Section 230), they got the application wrong (saying that algorithmic recommendations should be excepted from immunity).

Now, after reading Google’s brief, as well as the briefs of amici on their side, it is even more clear to me that:

  1. algorithmic recommendations are protected by Section 230 immunity; and
  2. creating an exception for such algorithms would severely damage the internet as we know it.

I address these points in reverse order below.

Google on the Death of the Internet Without Algorithms

The central point that Google makes throughout its brief is that a finding that Section 230’s immunity does not extend to the use of algorithmic recommendations would have potentially catastrophic implications for the internet economy. Google and amici for respondents emphasize the ubiquity of recommendation algorithms:

Recommendation algorithms are what make it possible to find the needles in humanity’s largest haystack. The result of these algorithms is unprecedented access to knowledge, from the lifesaving (“how to perform CPR”) to the mundane (“best pizza near me”). Google Search uses algorithms to recommend top search results. YouTube uses algorithms to share everything from cat videos to Heimlich-maneuver tutorials, algebra problem-solving guides, and opera performances. Services from Yelp to Etsy use algorithms to organize millions of user reviews and ratings, fueling global commerce. And individual users “like” and “share” content millions of times every day. – Brief for Respondent Google, LLC at 2.

The “recommendations” they challenge are implicit, based simply on the manner in which YouTube organizes and displays the multitude of third-party content on its site to help users identify content that is of likely interest to them. But it is impossible to operate an online service without “recommending” content in that sense, just as it is impossible to edit an anthology without “recommending” the story that comes first in the volume. Indeed, since the dawn of the internet, virtually every online service—from news, e-commerce, travel, weather, finance, politics, entertainment, cooking, and sports sites, to government, reference, and educational sites, along with search engines—has had to highlight certain content among the thousands or millions of articles, photographs, videos, reviews, or comments it hosts to help users identify what may be most relevant. Given the sheer volume of content on the internet, efforts to organize, rank, and display content in ways that are useful and attractive to users are indispensable. As a result, exposing online services to liability for the “recommendations” inherent in those organizational choices would expose them to liability for third-party content virtually all the time. – Amicus Brief for Meta Platforms at 3-4.

In other words, if Section 230 were limited in the way that the plaintiffs (and the DOJ) seek, internet platforms’ ability to offer users useful information would be strongly attenuated, if not completely impaired. The resulting legal exposure would lead inexorably to far less of the kinds of algorithmic recommendations upon which the modern internet is built.

This is, in part, why we weren’t able to fully endorse the DOJ’s brief in our previous post. The DOJ’s brief simply goes too far. It would be unreasonable to establish as a categorical rule that use of the ubiquitous auto-discovery algorithms that power so much of the internet would strip a platform of Section 230 protection. The general rule advanced by the DOJ’s brief would have detrimental and far-ranging implications.

Amici on Publishing and Section 230(f)(4)

Google and the amici also make a strong case that algorithmic recommendations are inseparable from publishing. They have a strong textual hook in Section 230(f)(4), which explicitly protects “enabling tools that… filter, screen, allow, or disallow content; pick, choose, analyze or disallow content; or transmit, receive, display, forward, cache, search, subset, organize, reorganize, or translate content.”

As the amicus brief from a group of internet-law scholars—including my International Center for Law & Economics colleagues Geoffrey Manne and Gus Hurwitz—put it:

Section 230’s text should decide this case. Section 230(c)(1) immunizes the user or provider of an “interactive computer service” from being “treated as the publisher or speaker” of information “provided by another information content provider.” And, as Section 230(f)’s definitions make clear, Congress understood the term “interactive computer service” to include services that “filter,” “screen,” “pick, choose, analyze,” “display, search, subset, organize,” or “reorganize” third-party content. Automated recommendations perform exactly those functions, and are therefore within the express scope of Section 230’s text. – Amicus Brief of Internet Law Scholars at 3-4.

In other words, Section 230 protects not just the conveyance of information, but how that information is displayed. Algorithmic recommendations are a subset of those display tools that allow users to find what they are looking for with ease. Section 230 can’t be reasonably read to exclude them.

Why This Isn’t Really (Just) a Roommates.com Case

This is where the DOJ’s amicus brief (and our previous analysis) misses the point. This is not strictly a Roomates.com case. The case actually turns on whether algorithmic recommendations are separable from publication of third-party content, rather than whether they are design choices akin to what was occurring in that case.

For instance, in our previous post, we argued that:

[T]he DOJ argument then moves onto thinner ice. The DOJ believes that the 230 liability shield in Gonzalez depends on whether an automated “recommendation” rises to the level of development or creation, as the design of filtering criteria in Roommates.com did.

While we thought the DOJ went too far in differentiating algorithmic recommendations from other uses of algorithms, we gave them too much credit in applying the Roomates.com analysis. Section 230 was meant to immunize filtering tools, so long as the information provided is from third parties. Algorithmic recommendations—like the type at issue with YouTube’s “Up Next” feature—are less like the conduct in Roommates.com and much more like a search engine.

The DOJ did, however, have a point regarding algorithmic tools in that they may—like any other tool a platform might use—be employed in a way that transforms the automated promotion into a direct endorsement or original publication. For instance, it’s possible to use algorithms to intentionally amplify certain kinds of content in such a way as to cultivate more of that content.

That’s, after all, what was at the heart of Roommates.com. The site was designed to elicit responses from users that violated the law. Algorithms can do that, but as we observed previously, and as the many amici in Gonzalez observe, there is nothing inherent to the operation of algorithms that match users with content that makes their use categorically incompatible with Section 230’s protections.

Conclusion

After looking at the textual and policy arguments forwarded by both sides in Gonzalez, it appears that Google and amici for respondents have the better of it. As several amici argued, to the extent there are good reasons to reform Section 230, Congress should take the lead. The Supreme Court shouldn’t take this case as an opportunity to significantly change the consensus of the appellate courts on the broad protections of Section 230 immunity.

Later next month, the U.S. Supreme Court will hear oral arguments in Gonzalez v. Google LLC, a case that has drawn significant attention and many bad takes regarding how Section 230 of the Communications Decency Act should be interpreted. Enacted in the mid-1990s, when the Internet as we know it was still in its infancy, Section 230 has grown into a law that offers online platforms a fairly comprehensive shield against liability for the content that third parties post to their services. But the law has also come increasingly under fire, from both the political left and the right. 

At issue in Gonzalez is whether Section 230(c)(1) immunizes Google from a set of claims brought under the Antiterrorism Act of 1990 (ATA). The petitioners are relatives of Nohemi Gonzalez, an American citizen murdered in a 2015 terrorist attack in Paris. They allege that Google, through YouTube, is liable under the ATA for providing assistance to ISIS for four main reasons. They allege that: 

  1. Google allowed ISIS to use YouTube to disseminate videos and messages, thereby recruiting and radicalizing terrorists responsible for the murder.
  2. Google failed to take adequate steps to take down videos and accounts and keep them down.
  3. Google recommends videos of others, both through subscriptions and algorithms.
  4. Google monetizes this content through its AdSense service, with ISIS-affiliated users receiving revenue. 

The 9th U.S. Circuit Court of Appeals dismissed all of the non-revenue-sharing claims as barred by Section 230(c)(1), but allowed the revenue-sharing claim to go forward. 

Highlights of DOJ’s Brief

In an amicus brief, the U.S. Justice Department (DOJ) ultimately asks the Court to vacate the 9th Circuit’s judgment regarding those claims that are based on YouTube’s alleged targeted recommendations of ISIS content. But the DOJ also rejects much of the petitioner’s brief, arguing that Section 230 does rightfully apply to the rest of the claims. 

The crux of the DOJ’s brief concerns when and how design choices can be outside of Section 230 immunity. The lodestar 9th Circuit case that the DOJ brief applies is 2008’s Fair Housing Council of San Fernando Valley v. Roommates.com.

As the DOJ notes, radical theories advanced by the plaintiffs and other amici would go too far in restricting Section 230 immunity based on a platform’s decisions on whether or not to block or remove user content (see, e.g., its discussion on pp. 17-21 of the merits and demerits of Justice Clarence Thomas’s Malwarebytes concurrence).  

At the same time, the DOJ’s brief notes that there is room for a reasonable interpretation of Section 230 that allows for liability to attach when online platforms behave unreasonably in their promotion of users’ content. Applying essentially the 9th Circuit’s Roommates.com standard, the DOJ argues that YouTube’s choice to amplify certain terrorist content through its recommendations algorithm is a design choice, rather than simply the hosting of third-party content, thereby removing it from the scope of  Section 230 immunity.  

While there is much to be said in favor of this approach, it’s important to point out that, although directionally correct, it’s not at all clear that a Roommates.com analysis should ultimately come down as the DOJ recommends in Gonzalez. More broadly, the way the DOJ structures its analysis has important implications for how we should think about the scope of Section 230 reform that attempts to balance accountability for intermediaries with avoiding undue collateral censorship.

Charting a Middle Course on Immunity

The important point on which the DOJ relies from Roommates.com is that intermediaries can be held accountable when their own conduct creates violations of the law, even if it involves third–party content. As the DOJ brief puts it:

Section 230(c)(1) protects an online platform from claims premised on its dissemination of third-party speech, but the statute does not immunize a platform’s other conduct, even if that conduct involves the solicitation or presentation of third-party content. The Ninth Circuit’s Roommates.com decision illustrates the point in the context of a website offering a roommate-matching service… As a condition of using the service, Roommates.com “require[d] each subscriber to disclose his sex, sexual orientation and whether he would bring children to a household,” and to “describe his preferences in roommates with respect to the same three criteria.” Ibid. The plaintiffs alleged that asking those questions violated housing-discrimination laws, and the court of appeals agreed that Section 230(c)(1) did not shield Roommates.com from liability for its “own acts” of “posting the questionnaire and requiring answers to it.” Id. at 1165.

Imposing liability in such circumstances does not treat online platforms as the publishers or speakers of content provided by others. Nor does it obligate them to monitor their platforms to detect objectionable postings, or compel them to choose between “suppressing controversial speech or sustaining prohibitive liability.”… Illustrating that distinction, the Roommates.com court held that although Section 230(c)(1) did not apply to the website’s discriminatory questions, it did shield the website from liability for any discriminatory third-party content that users unilaterally chose to post on the site’s “generic” “Additional Comments” section…

The DOJ proceeds from this basis to analyze what it would take for Google (via YouTube) to no longer benefit from Section 230 immunity by virtue of its own editorial actions, as opposed to its actions as a publisher (which 230 would still protect). For instance, are the algorithmic suggestions of videos simply neutral tools that allow for users to get more of the content they desire, akin to search results? Or are the algorithmic suggestions of new videos a design choice that makes it akin to Roommates?

The DOJ argues that taking steps to better display pre-existing content is not content development or creation, in and of itself. Similarly, it would be a mistake to make intermediaries liable for creating tools that can then be deployed by users:

Interactive websites invariably provide tools that enable users to create, and other users to find and engage with, information. A chatroom might supply topic headings to organize posts; a photo-sharing site might offer a feature for users to signal that they like or dislike a post; a classifieds website might enable users to add photos or maps to their listings. If such features rendered the website a co-developer of all users’ content, Section 230(c)(1) would be a dead letter.

At a high level, this is correct. Unfortunately, the DOJ argument then moves onto thinner ice. The DOJ believes that the 230 liability shield in Gonzalez depends on whether an automated “recommendation” rises to the level of development or creation, as the design of filtering criteria in Roommates.com did. Toward this end, the brief notes that:

The distinction between a recommendation and the recommended content is particularly clear when the recommendation is explicit. If YouTube had placed a selected ISIS video on a user’s homepage alongside a message stating, “You should watch this,” that message would fall outside Section 230(c)(1). Encouraging a user to watch a selected video is conduct distinct from the video’s publication (i.e., hosting). And while YouTube would be the “publisher” of the recommendation message itself, that message would not be “information provided by another information content provider.” 47 U.S.C. 230(c)(1).

An Absence of Immunity Does Not Mean a Presence of Liability

Importantly, the DOJ brief emphasizes throughout that remanding the ATA claims is not the end of the analysis—i.e., it does not mean that the plaintiffs can prove the elements. Moreover, other background law—notably, the First Amendment—can limit the application of liability to intermediaries, as well. As we put it in our paper on Section 230 reform:

It is important to again note that our reasonableness proposal doesn’t change the fact that the underlying elements in any cause of action still need to be proven. It is those underlying laws, whether civil or criminal, that would possibly hold intermediaries liable without Section 230 immunity. Thus, for example, those who complain that FOSTA/SESTA harmed sex workers by foreclosing a safe way for them to transact (illegal) business should really be focused on the underlying laws that make sex work illegal, not the exception to Section 230 immunity that FOSTA/SESTA represents. By the same token, those who assert that Section 230 improperly immunizes “conservative bias” or “misinformation” fail to recognize that, because neither of those is actually illegal (nor could they be under First Amendment law), Section 230 offers no additional immunity from liability for such conduct: There is no underlying liability from which to provide immunity in the first place.

There’s a strong likelihood that, on remand, the court will find there is no violation of the ATA at all. Section 230 immunity need not be stretched beyond all reasonable limits to protect intermediaries from hypothetical harms when underlying laws often don’t apply. 

Conclusion

To date, the contours of Section 230 reform largely have been determined by how courts interpret the statute. There is an emerging consensus that some courts have gone too far in extending Section 230 immunity to intermediaries. The DOJ’s brief is directionally correct, but the Court should not adopt it wholesale. More needs to be done to ensure that the particular facts of Gonzalez are not used to completely gut Section 230 more generally.  

Twitter has seen a lot of ups and downs since Elon Musk closed on his acquisition of the company in late October and almost immediately set about his initiatives to “reform” the platform’s operations.

One of the stories that has gotten somewhat lost in the ensuing chaos is that, in the short time under Musk, Twitter has made significant inroads—on at least some margins—against the visibility of child sexual abuse material (CSAM) by removing major hashtags that were used to share it, creating a direct reporting option, and removing major purveyors. On the other hand, due to the large reductions in Twitter’s workforce—both voluntary and involuntary—there are now very few human reviewers left to deal with the issue.

Section 230 immunity currently protects online intermediaries from most civil suits for CSAM (a narrow carveout is made under Section 1595 of the Trafficking Victims Protection Act). While the federal government could bring criminal charges if it believes online intermediaries are violating federal CSAM laws, and certain narrow state criminal claims could be brought consistent with federal law, private litigants are largely left without the ability to find redress on their own in the courts.

This, among other reasons, is why there has been a push to amend Section 230 immunity. Our proposal (along with co-author Geoffrey Manne) suggests online intermediaries should have a reasonable duty of care to remove illegal content. But this still requires thinking carefully about what a reasonable duty of care entails.

For instance, one of the big splash moves made by Twitter after Musk’s acquisition was to remove major CSAM distribution hashtags. While this did limit visibility of CSAM for a time, some experts say it doesn’t really solve the problem, as new hashtags will arise. So, would a reasonableness standard require the periodic removal of major hashtags? Perhaps it would. It appears to have been a relatively low-cost way to reduce access to such material, and could theoretically be incorporated into a larger program that uses automated discovery to find and remove future hashtags.

Of course it won’t be perfect, and will be subject to something of a Whac-A-Mole dynamic. But the relevant question isn’t whether it’s a perfect solution, but whether it yields significant benefit relative to its cost, such that it should be regarded as a legally reasonable measure that platforms should broadly implement.

On the flip side, Twitter has lost such a large amount of its workforce that it potentially no longer has enough staff to do the important review of CSAM. As long as Twitter allows adult nudity, and algorithms are unable to effectively distinguish between different types of nudity, human reviewers remain essential. A reasonableness standard might also require sufficient staff and funding dedicated to reviewing posts for CSAM. 

But what does it mean for a platform to behave “reasonably”?

Platforms Should Behave ‘Reasonably’

Rethinking platforms’ safe harbor from liability as governed by a “reasonableness” standard offers a way to more effectively navigate the complexities of these tradeoffs without resorting to the binary of immunity or total liability that typically characterizes discussions of Section 230 reform.

It could be the case that, given the reality that machines can’t distinguish between “good” and “bad” nudity, it is patently unreasonable for an open platform to allow any nudity at all if it is run with the level of staffing that Musk seems to prefer for Twitter.

Consider the situation that MindGeek faced a couple of years ago. It was pressured by financial providers, including PayPal and Visa, to clean up the CSAM and nonconsenual pornography that appeared on its websites. In response, they removed more than 80% of suspected illicit content and required greater authentication for posting.

Notwithstanding efforts to clean up the service, a lawsuit was filed against MindGeek and Visa by victims who asserted that the credit-card company was a knowing conspirator for processing payments to MindGeek’s sites when they were purveying child pornography. Notably, Section 230 issues were dismissed early on in the case, but the remaining claims—rooted in the Racketeer Influenced and Corrupt Organizations Act (RICO) and the Trafficking Victims Protection Act (TVPA)—contained elements that support evaluating the conduct of online intermediaries, including payment providers who support online services, through a reasonableness lens.

In our amicus, we stressed the broader policy implications of failing to appropriately demarcate the bounds of liability. In short, we stressed that deterrence is best encouraged by placing responsibility for control on the party most closely able to monitor the situation—i.e., MindGeek, and not Visa. Underlying this, we believe that an appropriately tuned reasonableness standard should be able to foreclose these sorts of inquiries at early stages of litigation if there is good evidence that an intermediary behaved reasonably under the circumstances.

In this case, we believed the court should have taken seriously the fact that a payment processor needs to balance a number of competing demands— legally, economically, and morally—in a way that enables them to serve their necessary prosocial roles. Here, Visa had to balance its role, on the one hand, as a neutral intermediary responsible for handling millions of daily transactions, with its interests to ensure that it did not facilitate illegal behavior. But it also was operating, essentially, under a veil of ignorance: all of the information it had was derived from news reports, as it was not directly involved in, nor did it have special insight into, the operation of MindGeek’s businesses.

As we stressed in our intermediary-liability paper, there is indeed a valid concern that changes to intermediary-liability policy not invite a flood of ruinous litigation. Instead, there needs to be some ability to determine at the early stages of litigation whether a defendant behaved reasonably under the circumstances. In the MindGeek case, we believed that Visa did.

In essence, much of this approach to intermediary liability boils down to finding socially and economically efficient dividing lines that can broadly demarcate when liability should attach. For example, if Visa is liable as a co-conspirator in MindGeek’s allegedly illegal enterprise for providing a payment network that MindGeek uses by virtue of its relationship with yet other intermediaries (i.e., the banks that actually accept and process the credit-card payments), why isn’t the U.S. Post Office also liable for providing package-delivery services that allow MindGeek to operate? Or its maintenance contractor for cleaning and maintaining its offices?

Twitter implicitly engaged in this sort of analysis when it considered becoming an OnlyFans competitor. Despite having considerable resources—both algorithmic and human—Twitter’s internal team determined they could not “accurately detect child sexual exploitation and non-consensual nudity at scale.” As a result, they abandoned the project. Similarly, Tumblr tried to make many changes, including taking down CSAM hashtags, before finally giving up and removing all pornographic material in order to remain in the App Store for iOS. At root, these firms demonstrated the ability to weigh costs and benefits in ways entirely consistent with a reasonableness analysis. 

Thinking about the MindGeek situation again, it could also be the case that MindGeek did not behave reasonably. Some of MindGeek’s sites encouraged the upload of user-generated pornography. If MindGeek experienced the same limitations in detecting “good” and “bad” pornography (which is likely), it could be that the company behaved recklessly for many years, and only tightened its verification procedures once it was caught. If true, that is behavior that should not be protected by the law with a liability shield, as it is patently unreasonable.

Apple is sometimes derided as an unfair gatekeeper of speech through its App Store. But, ironically, Apple itself has made complex tradeoffs between data security and privacy—through use of encryption, on the one hand, and checking devices for CSAM material, on the other. Prioritizing encryption over scanning devices (especially photos and messages) for CSAM is a choice that could allow for more CSAM to proliferate. But the choice is, again, a difficult one: how much moderation is needed and how do you balance such costs against other values important to users, such as privacy for the vast majority of nonoffending users?

As always, these issues are complex and involve tradeoffs. But it is obvious that more can and needs to be done by online intermediaries to remove CSAM.

But What Is ‘Reasonable’? And How Do We Get There?

The million-dollar legal question is what counts as “reasonable?” We are not unaware of the fact that, particularly when dealing with online platforms that deal with millions of users a day, there is a great deal of surface area exposed to litigation by potentially illicit user-generated conduct. Thus, it is not the case, at least for the foreseeable future, that we need to throw open gates of a full-blown common-law process to determine questions of intermediary liability. What is needed, instead, is a phased-in approach that gets courts in the business of parsing these hard questions and building up a body of principles that, on the one hand, encourage platforms to do more to control illicit content on their services, and on the other, discourages unmeritorious lawsuits by the plaintiffs’ bar.

One of our proposals for Section 230 reform is for a multistakeholder body, overseen by an expert agency like the Federal Trade Commission or National Institute of Standards and Technology, to create certified moderation policies. This would involve online intermediaries working together with a convening federal expert agency to develop a set of best practices for removing CSAM, including thinking through the cost-benefit analysis of more moderation—human or algorithmic—or even wholesale removal of nudity and pornographic content.

Compliance with these standards should, in most cases, operate to foreclose litigation against online service providers at an early stage. If such best practices are followed, a defendant could point to its moderation policies as a “certified answer” to any complaint alleging a cause of action arising out of user-generated content. Compliant practices will merit dismissal of the case, effecting a safe harbor similar to the one currently in place in Section 230.

In litigation, after a defendant answers a complaint with its certified moderation policies, the burden would shift to the plaintiff to adduce sufficient evidence to show that the certified standards were not actually adhered to. Such evidence should be more than mere res ipsa loquitur; it must be sufficient to demonstrate that the online service provider should have been aware of a harm or potential harm, that it had the opportunity to cure or prevent it, and that it failed to do so. Such a claim would need to meet a heightened pleading requirement, as for fraud, requiring particularity. And, periodically, the body overseeing the development of this process would incorporate changes to the best practices standards based on the cases being brought in front of courts.

Online service providers don’t need to be perfect in their content-moderation decisions, but they should behave reasonably. A properly designed duty-of-care standard should be flexible and account for a platform’s scale, the nature and size of its user base, and the costs of compliance, among other considerations. What is appropriate for YouTube, Facebook, or Twitter may not be the same as what’s appropriate for a startup social-media site, a web-infrastructure provider, or an e-commerce platform.

Indeed, this sort of flexibility is a benefit of adopting a “reasonableness” standard, such as is found in common-law negligence. Allowing courts to apply the flexible common-law duty of reasonable care would also enable jurisprudence to evolve with the changing nature of online intermediaries, the problems they pose, and the moderating technologies that become available.

Conclusion

Twitter and other online intermediaries continue to struggle with the best approach to removing CSAM, nonconsensual pornography, and a whole host of other illicit content. There are no easy answers, but there are strong ethical reasons, as well as legal and market pressures, to do more. Section 230 reform is just one part of a complete regulatory framework, but it is an important part of getting intermediary liability incentives right. A reasonableness approach that would hold online platforms accountable in a cost-beneficial way is likely to be a key part of a positive reform agenda for Section 230.

In an expected decision (but with a somewhat unexpected coalition), the U.S. Supreme Court has moved 5 to 4 to vacate an order issued early last month by the 5th U.S. Circuit Court of Appeals, which stayed an earlier December 2021 order from the U.S. District Court for the Western District of Texas enjoining Texas’ attorney general from enforcing the state’s recently enacted social-media law, H.B. 20. The law would bar social-media platforms with more than 50 million active users from engaging in “censorship” based on political viewpoint. 

The shadow-docket order serves to grant the preliminary injunction sought by NetChoice and the Computer & Communications Industry Association to block the law—which they argue is facially unconstitutional—from taking effect. The trade groups also are challenging a similar Florida law, which the 11th U.S. Circuit Court of Appeals last week ruled was “substantially likely” to violate the First Amendment. Both state laws will thus be stayed while challenges on the merits proceed. 

But the element of the Supreme Court’s order drawing the most initial interest is the “strange bedfellows” breakdown that produced it. Chief Justice John Roberts was joined by conservative Justices Brett Kavanaugh and Amy Coney Barrett and liberals Stephen Breyer and Sonia Sotomayor in moving to vacate the 5th Circuit’s stay. Meanwhile, Justice Samuel Alito wrote a dissent that was joined by fellow conservatives Clarence Thomas and Neil Gorsuch, and liberal Justice Elena Kagan also dissented without offering a written justification.

A glance at the recent history, however, reveals why it should not be all that surprising that the justices would not come down along predictable partisan lines. Indeed, when it comes to content moderation and the question of whether to designate platforms as “common carriers,” the one undeniably predictable outcome is that both liberals and conservatives have been remarkably inconsistent.

Both Sides Flip Flop on Common Carriage

Ever since Justice Thomas used his concurrence in 2021’s Biden v. Knight First Amendment Institute to lay out a blueprint for how states could regulate social-media companies as common carriers, states led by conservatives have been working to pass bills to restrict the ability of social media companies to “censor.” 

Forcing common carriage on the Internet was, not long ago, something conservatives opposed. It was progressives who called net neutrality the “21st Century First Amendment.” The actual First Amendment, however, protects the rights of both Internet service providers (ISPs) and social-media companies to decide the rules of the road on their own platforms.

Back in the heady days of 2014, when the Federal Communications Commission (FCC) was still planning its next moves on net neutrality after losing at the U.S. Court of Appeals for the D.C. Circuit the first time around, Geoffrey Manne and I at the International Center for Law & Economics teamed with Berin Szoka and Tom Struble of TechFreedom to write a piece for the First Amendment Law Review arguing that there was no exception that would render broadband ISPs “state actors” subject to the First Amendment. Further, we argued that the right to editorial discretion meant that net-neutrality regulations would be subject to (and likely fail) First Amendment scrutiny under Tornillo or Turner.

After the FCC moved to reclassify broadband as a Title II common carrier in 2015, then-Judge Kavanaugh of the D.C. Circuit dissented from the denial of en banc review, in part on First Amendment grounds. He argued that “the First Amendment bars the Government from restricting the editorial discretion of Internet service providers, absent a showing that an Internet service provider possesses market power in a relevant geographic market.” In fact, Kavanaugh went so far as to link the interests of ISPs and Big Tech (and even traditional media), stating:

If market power need not be shown, the Government could regulate the editorial decisions of Facebook and Google, of MSNBC and Fox, of NYTimes.com and WSJ.com, of YouTube and Twitter. Can the Government really force Facebook and Google and all of those other entities to operate as common carriers? Can the Government really impose forced-carriage or equal-access obligations on YouTube and Twitter? If the Government’s theory in this case were accepted, then the answers would be yes. After all, if the Government could force Internet service providers to carry unwanted content even absent a showing of market power, then it could do the same to all those other entities as well. There is no principled distinction between this case and those hypothetical cases.

This was not a controversial view among free-market, right-of-center types at the time.

An interesting shift started to occur during the presidency of Donald Trump, however, as tensions between social-media companies and many on the right came to a head. Instead of seeing these companies as private actors with strong First Amendment rights, some conservatives began looking either for ways to apply the First Amendment to them directly as “state actors” or to craft regulations that would essentially make social-media companies into common carriers with regard to speech.

But Kavanaugh’s opinion in USTelecom remains the best way forward to understand how the First Amendment applies online today, whether regarding net neutrality or social-media regulation. Given Justice Alito’s view, expressed in his dissent, that it “is not at all obvious how our existing precedents, which predate the age of the internet, should apply to large social media companies,” it is a fair bet that laws like those passed by Texas and Florida will get a hearing before the Court in the not-distant future. If Justice Kavanaugh’s opinion has sway among the conservative bloc of the Supreme Court, or is able to peel off justices from the liberal bloc, the Texas law and others like it (as well as net-neutrality regulations) will be struck down as First Amendment violations.

Kavanaugh’s USTelecom Dissent

In then-Judge Kavanaugh’s dissent, he highlighted two reasons he believed the FCC’s reclassification of broadband as Title II was unlawful. The first was that the reclassification decision was a “major question” that required clear authority delegated by Congress. The second, more important point was that the FCC’s reclassification decision was subject to the Turner standard. Under that standard, since the FCC did not engage—at the very least—in a market-power analysis, the rules could not stand, as they amounted to mandated speech.

The interesting part of this opinion is that it tracks very closely to the analysis of common-carriage requirements for social-media companies. Kavanaugh’s opinion offered important insights into:

  1. the applicability of the First Amendment right to editorial discretion to common carriers;
  2. the “use it or lose it” nature of this right;
  3. whether Turner’s protections depended on scarcity; and 
  4. what would be required to satisfy Turner scrutiny.

Common Carriage and First Amendment Protection

Kavanaugh found unequivocally that common carriers, such as ISPs classified under Title II, were subject to First Amendment protection under the Turner decisions:

The Court’s ultimate conclusion on that threshold First Amendment point was not obvious beforehand. One could have imagined the Court saying that cable operators merely operate the transmission pipes and are not traditional editors. One could have imagined the Court comparing cable operators to electricity providers, trucking companies, and railroads – all entities subject to traditional economic regulation. But that was not the analytical path charted by the Turner Broadcasting Court. Instead, the Court analogized the cable operators to the publishers, pamphleteers, and bookstore owners traditionally protected by the First Amendment. As Turner Broadcasting concluded, the First Amendment’s basic principles “do not vary when a new and different medium for communication appears” – although there of course can be some differences in how the ultimate First Amendment analysis plays out depending on the nature of (and competition in) a particular communications market. Brown v. Entertainment Merchants Association, 564 U.S. 786, 790 (2011) (internal quotation mark omitted).

Here, of course, we deal with Internet service providers, not cable television operators. But Internet service providers and cable operators perform the same kinds of functions in their respective networks. Just like cable operators, Internet service providers deliver content to consumers. Internet service providers may not necessarily generate much content of their own, but they may decide what content they will transmit, just as cable operators decide what content they will transmit. Deciding whether and how to transmit ESPN and deciding whether and how to transmit ESPN.com are not meaningfully different for First Amendment purposes.

Indeed, some of the same entities that provide cable television service – colloquially known as cable companies – provide Internet access over the very same wires. If those entities receive First Amendment protection when they transmit television stations and networks, they likewise receive First Amendment protection when they transmit Internet content. It would be entirely illogical to conclude otherwise. In short, Internet service providers enjoy First Amendment protection of their rights to speak and exercise editorial discretion, just as cable operators do.

‘Use It or Lose It’ Right to Editorial Discretion

Kavanaugh questioned whether the First Amendment right to editorial discretion depends, to some degree, on how much the entity used the right. Ultimately, he rejected the idea forwarded by the FCC that, since ISPs don’t restrict access to any sites, they were essentially holding themselves out to be common carriers:

I find that argument mystifying. The FCC’s “use it or lose it” theory of First Amendment rights finds no support in the Constitution or precedent. The FCC’s theory is circular, in essence saying: “They have no First Amendment rights because they have not been regularly exercising any First Amendment rights and therefore they have no First Amendment rights.” It may be true that some, many, or even most Internet service providers have chosen not to exercise much editorial discretion, and instead have decided to allow most or all Internet content to be transmitted on an equal basis. But that “carry all comers” decision itself is an exercise of editorial discretion. Moreover, the fact that the Internet service providers have not been aggressively exercising their editorial discretion does not mean that they have no right to exercise their editorial discretion. That would be akin to arguing that people lose the right to vote if they sit out a few elections. Or citizens lose the right to protest if they have not protested before. Or a bookstore loses the right to display its favored books if it has not done so recently. That is not how constitutional rights work. The FCC’s “use it or lose it” theory is wholly foreign to the First Amendment.

Employing a similar logic, Kavanaugh also rejected the notion that net-neutrality rules were essentially voluntary, given that ISPs held themselves out as carrying all content.

Relatedly, the FCC claims that, under the net neutrality rule, an Internet service provider supposedly may opt out of the rule by choosing to carry only some Internet content. But even under the FCC’s description of the rule, an Internet service provider that chooses to carry most or all content still is not allowed to favor some content over other content when it comes to price, speed, and availability. That half-baked regulatory approach is just as foreign to the First Amendment. If a bookstore (or Amazon) decides to carry all books, may the Government then force the bookstore (or Amazon) to feature and promote all books in the same manner? If a newsstand carries all newspapers, may the Government force the newsstand to display all newspapers in the same way? May the Government force the newsstand to price them all equally? Of course not. There is no such theory of the First Amendment. Here, either Internet service providers have a right to exercise editorial discretion, or they do not. If they have a right to exercise editorial discretion, the choice of whether and how to exercise that editorial discretion is up to them, not up to the Government.

Think about what the FCC is saying: Under the rule, you supposedly can exercise your editorial discretion to refuse to carry some Internet content. But if you choose to carry most or all Internet content, you cannot exercise your editorial discretion to favor some content over other content. What First Amendment case or principle supports that theory? Crickets.

In a footnote, Kavanugh continued to lambast the theory of “voluntary regulation” forwarded by the concurrence, stating:

The concurrence in the denial of rehearing en banc seems to suggest that the net neutrality rule is voluntary. According to the concurrence, Internet service providers may comply with the net neutrality rule if they want to comply, but can choose not to comply if they do not want to comply. To the concurring judges, net neutrality merely means “if you say it, do it.”…. If that description were really true, the net neutrality rule would be a simple prohibition against false advertising. But that does not appear to be an accurate description of the rule… It would be strange indeed if all of the controversy were over a “rule” that is in fact entirely voluntary and merely proscribes false advertising. In any event, I tend to doubt that Internet service providers can now simply say that they will choose not to comply with any aspects of the net neutrality rule and be done with it. But if that is what the concurrence means to say, that would of course avoid any First Amendment problem: To state the obvious, a supposed “rule” that actually imposes no mandates or prohibitions and need not be followed would not raise a First Amendment issue.

Scarcity and Capacity to Carry Content

The FCC had also argued that there was a difference between ISPs and the cable companies in Turner in that ISPs did not face decisions about scarcity in content carriage. But Kavanaugh rejected this theory as inconsistent with the First Amendment’s right not to be compelled to carry a message or speech.

That argument, too, makes little sense as a matter of basic First Amendment law. First Amendment protection does not go away simply because you have a large communications platform. A large bookstore has the same right to exercise editorial discretion as a small bookstore. Suppose Amazon has capacity to sell every book currently in publication and therefore does not face the scarcity of space that a bookstore does. Could the Government therefore force Amazon to sell, feature, and promote every book on an equal basis, and prohibit Amazon from promoting or recommending particular books or authors? Of course not. And there is no reason for a different result here. Put simply, the Internet’s technological architecture may mean that Internet service providers can provide unlimited content; it does not mean that they must.

Keep in mind, moreover, why that is so. The First Amendment affords editors and speakers the right not to speak and not to carry or favor unwanted speech of others, at least absent sufficient governmental justification for infringing on that right… That foundational principle packs at least as much punch when you have room on your platform to carry a lot of speakers as it does when you have room on your platform to carry only a few speakers.

Turner Scrutiny and Bottleneck Market Power

Finally, Kavanaugh applied Turner scrutiny and found that, at the very least, it requires a finding of “bottleneck market power” that would allow ISPs to harm consumers. 

At the time of the Turner Broadcasting decisions, cable operators exercised monopoly power in the local cable television markets. That monopoly power afforded cable operators the ability to unfairly disadvantage certain broadcast stations and networks. In the absence of a competitive market, a broadcast station had few places to turn when a cable operator declined to carry it. Without Government intervention, cable operators could have disfavored certain broadcasters and indeed forced some broadcasters out of the market altogether. That would diminish the content available to consumers. The Supreme Court concluded that the cable operators’ market-distorting monopoly power justified Government intervention. Because of the cable operators’ monopoly power, the Court ultimately upheld the must-carry statute…

The problem for the FCC in this case is that here, unlike in Turner Broadcasting, the FCC has not shown that Internet service providers possess market power in a relevant geographic market… 

Rather than addressing any problem of market power, the net neutrality rule instead compels private Internet service providers to supply an open platform for all would-be Internet speakers, and thereby diversify and increase the number of voices available on the Internet. The rule forcibly reduces the relative voices of some Internet service and content providers and enhances the relative voices of other Internet content providers.

But except in rare circumstances, the First Amendment does not allow the Government to regulate the content choices of private editors just so that the Government may enhance certain voices and alter the content available to the citizenry… Turner Broadcasting did not allow the Government to satisfy intermediate scrutiny merely by asserting an interest in diversifying or increasing the number of speakers available on cable systems. After all, if that interest sufficed to uphold must-carry regulation without a showing of market power, the Turner Broadcasting litigation would have unfolded much differently. The Supreme Court would have had little or no need to determine whether the cable operators had market power. But the Supreme Court emphasized and relied on the Government’s market power showing when the Court upheld the must-carry requirements… To be sure, the interests in diversifying and increasing content are important governmental interests in the abstract, according to the Supreme Court But absent some market dysfunction, Government regulation of the content carriage decisions of communications service providers is not essential to furthering those interests, as is required to satisfy intermediate scrutiny.

In other words, without a finding of bottleneck market power, there would be no basis for satisfying the government interest prong of Turner.

Applying Kavanaugh’s Dissent to NetChoice v. Paxton

Interestingly, each of these main points arises in the debate over regulating social-media companies as common carriers. Texas’ H.B. 20 attempts to do exactly that, which is at the heart of the litigation in NetChoice v. Paxton.

Common Carriage and First Amendment Protection

To the first point, Texas attempts to claim in its briefs that social-media companies are common carriers subject to lesser First Amendment protection: “Assuming the platforms’ refusals to serve certain customers implicated First Amendment rights, Texas has properly denominated the platforms common carriers. Imposing common-carriage requirements on a business does not offend the First Amendment.”

But much like the cable operators before them in Turner, social-media companies are not simply carriers of persons or things like the classic examples of railroads, telegraphs, and telephones. As TechFreedom put it in its brief: “As its name suggests… ‘common carriage’ is about offering, to the public at large  and on indiscriminate terms, to carry generic stuff from point A to point B. Social media websites fulfill none of these elements.”

In a sense, it’s even clearer that social-media companies are not common carriers than it was in the case of ISPs, because social-media platforms have always had terms of service that limit what can be said and that even allow the platforms to remove users for violations. All social-media platforms curate content for users in ways that ISPs normally do not.

‘Use It or Lose It’ Right to Editorial Discretion

Just as the FCC did in the Title II context, Texas also presses the idea that social-media companies gave up their right to editorial discretion by disclaiming the choice to exercise it, stating: “While the platforms compare their business policies to classic examples of First Amendment speech, such as a newspaper’s decision to include an article in its pages, the platforms have disclaimed any such status over many years and in countless cases. This Court should not accept the platforms’ good-for-this-case-only characterization of their businesses.” Pointing primarily to cases where social-media companies have invoked Section 230 immunity as a defense, Texas argues they have essentially lost the right to editorial discretion.

This, again, flies in the face of First Amendment jurisprudence, as Kavanaugh earlier explained. Moreover, the idea that social-media companies have disclaimed editorial discretion due to Section 230 is inconsistent with what that law actually does. Section 230 allows social-media companies to engage in as much or as little content moderation as they so choose by holding the third-party speakers accountable rather than the platform. Social-media companies do not relinquish their First Amendment rights to editorial discretion because they assert an applicable defense under the law. Moreover, social-media companies have long had rules delineating permissible speech, and they enforce those rules actively.

Interestingly, there has also been an analogue to the idea forwarded in USTelecom that the law’s First Amendment burdens are relatively limited. As noted above, then-Judge Kavanaugh rejected the idea forwarded by the concurrence that net-neutrality rules were essentially voluntary. In the case of H.B. 20, the bill’s original sponsor recently argued on Twitter that the Texas law essentially incorporates Section 230 by reference. If this is true, then the rules would be as pointless as the net-neutrality rules would have been, because social-media companies would be free under Section 230(c)(2) to remove “otherwise objectionable” material under the Texas law.

Scarcity and Capacity to Carry Content

In an earlier brief to the 5th Circuit, Texas attempted to differentiate social-media companies from the cable company in Turner by stating there was no necessary conflict between speakers, stating “[HB 20] does not, for example, pit one group of speakers against another.” But this is just a different way of saying that, since social-media companies don’t face scarcity in their technical capacity to carry speech, they can be required to carry all speech. This is inconsistent with the right Kavanaugh identified not to carry a message or speech, which is not subject to an exception that depends on the platform’s capacity to carry more speech.

Turner Scrutiny and Bottleneck Market Power

Finally, Judge Kavanaugh’s application of Turner to ISPs makes clear that a showing of bottleneck market power is necessary before common-carriage regulation may be applied to social-media companies. In fact, Kavanaugh used a comparison to social-media sites and broadcasters as a reductio ad absurdum for the idea that one could regulate ISPs without a showing of market power. As he put it there:

Consider the implications if the law were otherwise. If market power need not be shown, the Government could regulate the editorial decisions of Facebook and Google, of MSNBC and Fox, of NYTimes.com and WSJ.com, of YouTube and Twitter. Can the Government really force Facebook and Google and all of those other entities to operate as common carriers? Can the Government really impose forced-carriage or equal-access obligations on YouTube and Twitter? If the Government’s theory in this case were accepted, then the answers would be yes. After all, if the Government could force Internet service providers to carry unwanted content even absent a showing of market power, then it could do the same to all those other entities as well. There is no principled distinction between this case and those hypothetical cases.

Much like the FCC with its Open Internet Order, Texas did not make a finding of bottleneck market power in H.B. 20. Instead, Texas basically asked for the opportunity to get to discovery to develop the case that social-media platforms have market power, stating that “[b]ecause the District Court sharply limited discovery before issuing its preliminary injunction, the parties have not yet had the opportunity to develop many factual questions, including whether the platforms possess market power.” This simply won’t fly under Turner, which required a legislative finding of bottleneck market power that simply doesn’t exist in H.B. 20. 

Moreover, bottleneck market power means more than simply “market power” in an antitrust sense. As Judge Kavanaugh put it: “Turner Broadcasting seems to require even more from the Government. The Government apparently must also show that the market power would actually be used to disadvantage certain content providers, thereby diminishing the diversity and amount of content available.” Here, that would mean not only that social-media companies have market power, but they want to use it to disadvantage users in a way that makes less diverse content and less total content available.

The economics of multi-sided markets is probably the best explanation for why platforms have moderation rules. They are used to maximize a platform’s value by keeping as many users engaged and on those platforms as possible. In other words, the effect of moderation rules is to increase the amount of user speech by limiting harassing content that could repel users. This is a much better explanation for these rules than “anti-conservative bias” or a desire to censor for censorship’s sake (though there may be room for debate on the margin when it comes to the moderation of misinformation and hate speech).

In fact, social-media companies, unlike the cable operators in Turner, do not have the type of “physical connection between the television set and the cable network” that would grant them “bottleneck, or gatekeeper, control over” speech in ways that would allow platforms to “silence the voice of competing speakers with a mere flick of the switch.” Cf. Turner, 512 U.S. at 656. Even if they tried, social-media companies simply couldn’t prevent Internet users from accessing content they wish to see online; they inevitably will find such content by going to a different site or app.

Conclusion: The Future of the First Amendment Online

While many on both sides of the partisan aisle appear to see a stark divide between the interests of—and First Amendment protections afforded to—ISPs and social-media companies, Kavanaugh’s opinion in USTelecom shows clearly they are in the same boat. The two rise or fall together. If the government can impose common-carriage requirements on social-media companies in the name of free speech, then they most assuredly can when it comes to ISPs. If the First Amendment protects the editorial discretion of one, then it does for both.

The question then moves to relative market power, and whether the dominant firms in either sector can truly be said to have “bottleneck” market power, which implies the physical control of infrastructure that social-media companies certainly lack.

While it will be interesting to see what the 5th Circuit (and likely, the Supreme Court) ultimately do when reviewing H.B. 20 and similar laws, if now-Justice Kavanaugh’s dissent is any hint, there will be a strong contingent on the Court for finding the First Amendment applies online by protecting the right of private actors (ISPs and social-media companies) to set the rules of the road on their property. As Kavanaugh put it in Manhattan Community Access Corp. v. Halleck: “[t]he Free Speech Clause of the First Amendment constrains governmental actors and protects private actors.” Competition is the best way to protect consumers’ interests, not prophylactic government regulation.

With the 11th Circuit upholding the stay against Florida’s social-media law and the Supreme Court granting the emergency application to vacate the stay of the injunction in NetChoice v. Paxton, the future of the First Amendment appears to be on strong ground. There is no basis to conclude that simply calling private actors “common carriers” reduces their right to editorial discretion under the First Amendment.

The tentatively pending sale of Twitter to Elon Musk has been greeted with celebration by many on the right, along with lamentation by some on the left, regarding what it portends for the platform’s moderation policies. Musk, for his part, has announced that he believes Twitter should be a free-speech haven and that it needs to dial back the (allegedly politically biased) moderation in which it has engaged.

The good news for everyone is that a differentiated product at Twitter could be exactly what the market―and the debate over Big Tech―needs.

The Market for Speech Governance

As I’ve written previously, the First Amendment (bolstered by Section 230 of the Communications Decency Act) protects not only speech itself, but also the private ordering of speech. “Congress shall make no law… abridging the freedom of speech” means that state actors can’t infringe speech, but it also (in most cases) protects private actors’ ability to make such rules free from government regulation. As the Supreme Court has repeatedly held, private actors can make their own rules about speech on their own property.

As Justice Brett Kavanaugh put it on behalf of the Court in Manhattan Community Access Corp. v. Halleck:

[W]hen a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment because the private entity is not a state actor. The private entity may thus exercise editorial discretion over the speech and speakers in the forum…

In short, merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.

If the rule were otherwise, all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints and would lose the ability to exercise what they deem to be appropriate editorial discretion within that open forum. Private property owners and private lessees would face the unappetizing choice of allowing all comers or closing the platform altogether.

In other words, as much as it protects “the marketplace of ideas,” the First Amendment also protects “the market for speech governance.” Musk’s idea that Twitter should be subject to the First Amendment is simply incoherent, but his vision for Twitter to have less politically biased content moderation could work.

Musk’s Plan for Twitter

There has been much commentary on what Musk intends to do, and whether it is a realistic way to maximize the platform’s value. As a multi-sided platform, Twitter’s revenue is driven by advertisers, who want to reach a mass audience. This means Twitter, much like other social-media platforms, must consider the costs and benefits of speech to its users, and strike a balance that maximizes the value of the platform. The history of social-media content moderation suggests that these platforms have found that rules against harassment, abuse, spam, bots, pornography, and certain hate speech and misinformation are necessary.

For rules pertaining to harassment and abuse, in particular, it is easy to understand how they are necessary to prevent losing users. There seems to be a wide societal consensus that such speech is intolerable. Similarly, spam, bots, and pornographic content, even if legal speech, are largely not what social media users want to see.

But for hate speech and misinformation, however much one agrees in the abstract about their undesirableness, there is significant debate on the margins about what is acceptable or unacceptable discourse, just as there is over what is true or false when it comes to touchpoint social and political issues. It is one thing to ban Nazis due to hate speech; it is arguably quite another to remove a prominent feminist author due to “misgendering” people. It is also one thing to say crazy conspiracy theories like QAnon should be moderated, but quite another to fact-check good-faith questioning of the efficacy of masks or vaccines. It is likely in these areas that Musk will offer an alternative to what is largely seen as biased content moderation from Big Tech companies.

Musk appears to be making a bet that the market for speech governance is currently not well-served by the major competitors in the social-media space. If Twitter could thread the needle by offering a more politically neutral moderation policy that still manages to keep off the site enough of the types of content that repel users, then it could conceivably succeed and even influence the moderation policies of other social-media companies.

Let the Market Decide

The crux of the issue is this: Conservatives who have backed antitrust and regulatory action against Big Tech because of political bias concerns should be willing to back off and allow the market to work. And liberals who have defended the right of private companies to make rules for their platforms should continue to defend that principle. Let the market decide.

[The following post was adapted from the International Center for Law & Economics White Paper “Polluting Words: Is There a Coasean Case to Regulate Offensive Speech?]

Words can wound. They can humiliate, anger, insult.

University students—or, at least, a vociferous minority of them—are keen to prevent this injury by suppressing offensive speech. To ensure campuses are safe places, they militate for the cancellation of talks by speakers with opinions they find offensive, often successfully. And they campaign to get offensive professors fired from their jobs.

Off campus, some want this safety to be extended to the online world and, especially, to the users of social media platforms such as Twitter and Facebook. In the United States, this would mean weakening the legal protections of offensive speech provided by Section 230 of the Communications Decency Act (as President Joe Biden has recommended) or by the First Amendment and. In the United Kingdom, the Online Safety Bill is now before Parliament. If passed, it will give a U.K. government agency the power to dictate the content-moderation policies of social media platforms.

You don’t need to be a woke university student or grandstanding politician to suspect that society suffers from an overproduction of offensive speech. Basic economics provides a reason to suspect it—the reason being that offense is an external cost of speech. The cost is borne not by the speaker but by his audience. And when people do not bear all the costs of an action, they do it too much.

Jack tweets “women don’t have penises.” This offends Jill, who is someone with a penis who considers herself (or himself, if Jack is right) to be a woman. And it offends many others, who agree with Jill that Jack is indulging in ugly transphobic biological essentialism. Lacking Bill Clinton’s facility for feeling the pain of others, Jack does not bear this cost. So, even if it exceeds whatever benefit Jack gets from saying that women don’t have penises, he will still say it. In other words, he will say it even when doing so makes society altogether worse off.

It shouldn’t be allowed!

That’s what we normally say when actions harm others more than they benefit the agent. The law normally conforms to John Stuart Mill’s “Harm Principle” by restricting activities—such as shooting people or treating your neighbours to death metal at 130 decibels at 2 a.m.—with material external costs. Those who seek legal reform to restrict offensive speech are surely doing no more than following an accepted general principle.

But it’s not so simple. As Ronald Coase pointed out in his famous 1960 article “The Problem of Social Cost,” externalities are a reciprocal problem. If Wayne had no neighbors, his playing death metal at 130 decibels at 2 a.m. would have no external costs. Their choice of address is equally a source of the problem. Similarly, if Jill weren’t a Twitter user, she wouldn’t have been offended by Jack’s tweet about who has a penis, since she wouldn’t have encountered it. Externalities are like tangos: they always have at least two perpetrators.

So, the legal question, “who should have a right to what they want?”—Wayne to his loud music or his neighbors to their sleep; Jack to expressing his opinion about women or Jill to not hearing such opinions—cannot be answered by identifying the party who is responsible for the external cost. Both parties are responsible.

How, then, should the question be answered? In the same paper, Coase the showed that, in certain circumstances, who the courts favor will make no difference to what ends up happening, and that what ends up happening will be efficient. Suppose the court says that Wayne cannot bother his neighbors with death metal at 2 a.m. If Wayne would be willing to pay $100,000 to keep doing it and his neighbors, combined, would put up with it for anything more than $95,000, then they should be able to arrive at a mutually beneficial deal whereby Wayne pays them something between $95,000 and $100,000 to forgo their right to stop him making his dreadful noise.

That’s not exactly right. If negotiating a deal would cost more than $5,000, then no mutually beneficial deal is possible and the rights-trading won’t happen. Transaction costs being less than the difference between the two parties’ valuations is the circumstance in which the allocation of legal rights makes no difference to how resources get used, and where efficiency will be achieved, in any event.

But it is an unusual circumstance, especially when the external cost is suffered by many people. When the transaction cost is too high, efficiency does depend on the allocation of rights by courts or legislatures. As Coase argued, when this is so, efficiency will be served if a right to the disputed resource is granted to the party with the higher cost of avoiding the externality.

Given the (implausible) valuations Wayne and his neighbors place on the amount of noise in their environment at 2 a.m., efficiency is served by giving Wayne the right to play his death metal, unless he could soundproof his house or play his music at a much lower volume or take some other avoidance measure that costs him less than the $90,000 cost to his neighbours.

And given that Jack’s tweet about penises offends a large open-ended group of people, with whom Jack therefore cannot negotiate, it looks like they should be given the right not to be offended by Jack’s comment and he should be denied the right to make it. Coasean logic supports the woke censors!          

But, again, it’s not that simple—for two reasons.

The first is that, although those are offended may be harmed by the offending speech, they needn’t necessarily be. Physical pain is usually harmful, but not when experienced by a sexual masochist (in the right circumstances, of course). Similarly, many people take masochistic pleasure in being offended. You can tell they do, because they actively seek out the sources of their suffering. They are genuinely offended, but the offense isn’t harming them, just as the sexual masochist really is in physical pain but isn’t harmed by it. Indeed, real pain and real offense are required, respectively, for the satisfaction of the sexual masochist and the offense masochist.

How many of the offended are offense masochists? Where the offensive speech can be avoided at minimal cost, the answer must be most. Why follow Jordan Peterson on Twitter when you find his opinions offensive unless you enjoy being offended by him? Maybe some are keeping tabs on the dreadful man so that they can better resist him, and they take the pain for that reason rather than for masochistic glee. But how could a legislator or judge know? For all they know, most of those offended by Jordan Peterson are offense masochists and the offense he causes is a positive externality.

The second reason Coasean logic doesn’t support the would-be censors is that social media platforms—the venues of offensive speech that they seek to regulate—are privately owned. To see why this is significant, consider not offensive speech, but an offensive action, such as openly masturbating on a bus.

This is prohibited by law. But it is not the mere act that is illegal. You are allowed to masturbate in the privacy of your bedroom. You may not masturbate on a bus because those who are offended by the sight of it cannot easily avoid it. That’s why it is illegal to express obscenities about Jesus on a billboard erected across the road from a church but not at a meeting of the Angry Atheists Society. The laws that prohibit offensive speech in such circumstances—laws against public nuisance, harassment, public indecency, etc.—are generally efficient. The cost they impose on the offenders is less than the benefits to the offended.

But they are unnecessary when the giving and taking of offense occur within a privately owned place. Suppose no law prohibited masturbating on a bus. It still wouldn’t be allowed on buses owned by a profit-seeker. Few people want to masturbate on buses and most people who ride on buses seek trips that are masturbation-free. A prohibition on masturbation will gain the owner more customers than it loses him. The prohibition is simply another feature of the product offered by the bus company. Nice leather seats, punctual departures, and no wankers (literally). There is no more reason to believe that the bus company’s passenger-conduct rules will be inefficient than that its other product features will be and, therefore, no more reason to legally stipulate them.

The same goes for the content-moderation policies of social media platforms. They are just another product feature offered by a profit-seeking firm. If they repel more customers than they attract (or, more accurately, if they repel more advertising revenue than they attract), they would be inefficient. But then, of course, the company would not adopt them.

Of course, the owner of a social media platform might not be a pure profit-maximiser. For example, he might forgo $10 million in advertising revenue for the sake of banning speakers he personally finds offensive. But the outcome is still efficient. Allowing the speech would have cost more by way of the owner’s unhappiness than the lost advertising would have been worth.  And such powerful feelings in the owner of a platform create an opportunity for competitors who do not share his feelings. They can offer a platform that does not ban the offensive speakers and, if enough people want to hear what they have to say, attract users and the advertising revenue that comes with them. 

If efficiency is your concern, there is no problem for the authorities to solve. Indeed, the idea that the authorities would do a better job of deciding content-moderation rules is not merely absurd, but alarming. Politicians and the bureaucrats who answer to them or are appointed by them would use the power not to promote efficiency, but to promote agendas congenial to them. Jurisprudence in liberal democracies—and, especially, in America—has been suspicious of governmental control of what may be said. Nothing about social media provides good reason to become any less suspicious.

In recent years, a diverse cross-section of advocates and politicians have leveled criticisms at Section 230 of the Communications Decency Act and its grant of legal immunity to interactive computer services. Proposed legislative changes to the law have been put forward by both Republicans and Democrats.

It remains unclear whether Congress (or the courts) will amend Section 230, but any changes are bound to expand the scope, uncertainty, and expense of content risks. That’s why it’s important that such changes be developed and implemented in ways that minimize their potential to significantly disrupt and harm online activity. This piece focuses on those insurable content risks that most frequently result in litigation and considers the effect of the direct and indirect costs caused by frivolous suits and lawfare, not just the ultimate potential for a court to find liability. The experience of the 1980s asbestos-litigation crisis offers a warning of what could go wrong.

Enacted in 1996, Section 230 was intended to promote the Internet as a diverse medium for discourse, cultural development, and intellectual activity by shielding interactive computer services from legal liability when blocking or filtering access to obscene, harassing, or otherwise objectionable content. Absent such immunity, a platform hosting content produced by third parties could be held equally responsible as the creator for claims alleging defamation or invasion of privacy.

In the current legislative debates, Section 230’s critics on the left argue that the law does not go far enough to combat hate speech and misinformation. Critics on the right claim the law protects censorship of dissenting opinions. Legal challenges to the current wording of Section 230 arise primarily from what constitutes an “interactive computer service,” “good faith” restriction of content, and the grant of legal immunity, regardless of whether the restricted material is constitutionally protected. 

While Congress and various stakeholders debate various alternate statutory frameworks, several test cases simultaneously have been working their way through the judicial system and some states have either passed or are considering legislation to address complaints with Section 230. Some have suggested passing new federal legislation classifying online platforms as common carriers as an alternate approach that does not involve amending or repealing Section 230. Regardless of the form it may take, change to the status quo is likely to increase the risk of litigation and liability for those hosting or publishing third-party content.

The Nature of Content Risk

The class of individuals and organizations exposed to content risk has never been broader. Any information, content, or communication that is created, gathered, compiled, or amended can be considered “material” which, when disseminated to third parties, may be deemed “publishing.” Liability can arise from any step in that process. Those who republish material are generally held to the same standard of liability as if they were the original publisher. (See, e.g., Rest. (2d) of Torts § 578 with respect to defamation.)

Digitization has simultaneously reduced the cost and expertise required to publish material and increased the potential reach of that material. Where it was once limited to books, newspapers, and periodicals, “publishing” now encompasses such activities as creating and updating a website; creating a podcast or blog post; or even posting to social media. Much of this activity is performed by individuals and businesses who have only limited experience with the legal risks associated with publishing.

This is especially true regarding the use of third-party material, which is used extensively by both sophisticated and unsophisticated platforms. Platforms that host third-party-generated content—e.g., social media or websites with comment sections—have historically engaged in only limited vetting of that content, although this is changing. When combined with the potential to reach consumers far beyond the original platform and target audience—lasting digital traces that are difficult to identify and remove—and the need to comply with privacy and other statutory requirements, the potential for all manner of “publishers” to incur legal liability has never been higher.

Even sophisticated legacy publishers struggle with managing the litigation that arises from these risks. There are a limited number of specialist counsel, which results in higher hourly rates. Oversight of legal bills is not always effective, as internal counsel often have limited resources to manage their daily responsibilities and litigation. As a result, legal fees often make up as much as two-thirds of the average claims cost. Accordingly, defense spending and litigation management are indirect, but important, risks associated with content claims.

Effective risk management is any publisher’s first line of defense. The type and complexity of content risk management varies significantly by organization, based on its size, resources, activities, risk appetite, and sophistication. Traditional publishers typically have a formal set of editorial guidelines specifying policies governing the creation of content, pre-publication review, editorial-approval authority, and referral to internal and external legal counsel. They often maintain a library of standardized contracts; have a process to periodically review and update those wordings; and a process to verify the validity of a potential licensor’s rights. Most have formal controls to respond to complaints and to retraction/takedown requests.

Insuring Content Risks

Insurance is integral to most publishers’ risk-management plans. Content coverage is present, to some degree, in most general liability policies (i.e., for “advertising liability”). Specialized coverage—commonly referred to as “media” or “media E&O”—is available on a standalone basis or may be packaged with cyber-liability coverage. Terms of specialized coverage can vary significantly, but generally provides at least basic coverage for the three primary content risks of defamation, copyright infringement, and invasion of privacy.

Insureds typically retain the first dollar loss up to a specific dollar threshold. They may also retain a coinsurance percentage of every dollar thereafter in partnership with their insurer. For example, an insured may be responsible for the first $25,000 of loss, and for 10% of loss above that threshold. Such coinsurance structures often are used by insurers as a non-monetary tool to help control legal spending and to incentivize an organization to employ effective oversight of counsel’s billing practices.

The type and amount of loss retained will depend on the insured’s size, resources, risk profile, risk appetite, and insurance budget. Generally, but not always, increases in an insured’s retention or an insurer’s attachment (e.g., raising the threshold to $50,000, or raising the insured’s coinsurance to 15%) will result in lower premiums. Most insureds will seek the smallest retention feasible within their budget. 

Contract limits (the maximum coverage payout available) will vary based on the same factors. Larger policyholders often build a “tower” of insurance made up of multiple layers of the same or similar coverage issued by different insurers. Two or more insurers may partner on the same “quota share” layer and split any loss incurred within that layer on a pre-agreed proportional basis.  

Navigating the strategic choices involved in developing an insurance program can be complex, depending on an organization’s risks. Policyholders often use commercial brokers to aide them in developing an appropriate risk-management and insurance strategy that maximizes coverage within their budget and to assist with claims recoveries. This is particularly important for small and mid-sized insureds who may lack the sophistication or budget of larger organizations. Policyholders and brokers try to minimize the gaps in coverage between layers and among quota-share participants, but such gaps can occur, leaving a policyholder partially self-insured.

An organization’s options to insure its content risk may also be influenced by the dynamics of the overall insurance market or within specific content lines. Underwriters are not all created equal; it is a challenging responsibility requiring a level of prediction, and some underwriters may fail to adequately identify and account for certain risks. It can also be challenging to accurately measure risk aggregation and set appropriate reserves. An insurer’s appetite for certain lines and the availability of supporting reinsurance can fluctuate based on trends in the general capital markets. Specialty media/content coverage is a small niche within the global commercial insurance market, which makes insurers in this line more sensitive to these general trends.

Litigation Risks from Changes to Section 230

A full repeal or judicial invalidation of Section 230 generally would make every platform responsible for all the content they disseminate, regardless of who created the material requiring at least some additional editorial review. This would significantly disadvantage those platforms that host a significant volume of third-party content. Internet service providers, cable companies, social media, and product/service review companies would be put under tremendous strain, given the daily volume of content produced. To reduce the risk that they serve as a “deep pocket” target for plaintiffs, they would likely adopt more robust pre-publication screening of content and authorized third-parties; limit public interfaces; require registration before a user may publish content; employ more reactive complaint response/takedown policies; and ban problem users more frequently. Small and mid-sized enterprises (SMEs), as well as those not focused primarily on the business of publishing, would likely avoid many interactive functions altogether. 

A full repeal would be, in many ways, a blunderbuss approach to dealing with criticisms of Section 230, and would cause as many or more problems as it solves. In the current polarized environment, it also appears unlikely that Congress will reach bipartisan agreement on amended language for Section 230, or to classify interactive computer services as common carriers, given that the changes desired by the political left and right are so divergent. What may be more likely is that courts encounter a test case that prompts them to clarify the application of the existing statutory language—i.e., whether an entity was acting as a neutral platform or a content creator, whether its conduct was in “good faith,” and whether the material is “objectionable” within the meaning of the statute.

A relatively greater frequency of litigation is almost inevitable in the wake of any changes to the status quo, whether made by Congress or the courts. Major litigation would likely focus on those social-media platforms at the center of the Section 230 controversy, such as Facebook and Twitter, given their active role in these issues, deep pockets and, potentially, various admissions against interest helpful to plaintiffs regarding their level of editorial judgment. SMEs could also be affected in the immediate wake of a change to the statute or its interpretation. While SMEs are likely to be implicated on a smaller scale, the impact of litigation could be even more damaging to their viability if they are not adequately insured.

Over time, the boundaries of an amended Section 230’s application and any consequential effects should become clearer as courts develop application criteria and precedent is established for different fact patterns. Exposed platforms will likely make changes to their activities and risk-management strategies consistent with such developments. Operationally, some interactive features—such as comment sections or product and service reviews—may become less common.

In the short and medium term, however, a period of increased and unforeseen litigation to resolve these issues is likely to prove expensive and damaging. Insurers of content risks are likely to bear the brunt of any changes to Section 230, because these risks and their financial costs would be new, uncertain, and not incorporated into historical pricing of content risk. 

Remembering the Asbestos Crisis

The introduction of a new exposure or legal risk can have significant financial effects on commercial insurance carriers. New and revised risks must be accounted for in the assumptions, probabilities, and load factors used in insurance pricing and reserving models. Even small changes in those values can have large aggregate effects, which may undermine confidence in those models, complicate obtaining reinsurance, or harm an insurer’s overall financial health.

For example, in the 1980s, certain courts adopted the triple-trigger and continuous trigger methods[1] of determining when a policyholder could access coverage under an “occurrence” policy for asbestos claims. As a result, insurers paid claims under policies dating back to the early 1900s and, in some cases, under all policies from that date until the date of the claim. Such policies were written when mesothelioma related to asbestos was unknown and not incorporated into the policy pricing.

Insurers had long-since released reserves from the decades-old policy years, so those resources were not available to pay claims. Nor could underwriters retroactively increase premiums for the intervening years and smooth out the cost of these claims. This created extreme financial stress for impacted insurers and reinsurers, with some ultimately rendered insolvent. Surviving carriers responded by drastically reducing coverage and increasing prices, which resulted in a major capacity shortage that resolved only after the creation of the Bermuda insurance and reinsurance market. 

The asbestos-related liability crisis represented a perfect storm that is unlikely to be replicated. Given the ubiquitous nature of digital content, however, any drastic or misconceived changes to Section 230 protections could still cause significant disruption to the commercial insurance market. 

Content risk is covered, at least in part, by general liability and many cyber policies, but it is not currently a primary focus for underwriters. Specialty media underwriters are more likely to be monitoring Section 230 risk, but the highly competitive market will make it difficult for them to respond to any changes with significant price increases. In addition, the current market environment for U.S. property and casualty insurance generally is in the midst of correcting for years of inadequate pricing, expanding coverage, developing exposures, and claims inflation. It would be extremely difficult to charge an adequate premium increase if the potential severity of content risk were to increase suddenly.

In the face of such risk uncertainty and challenges to adequately increasing premiums, underwriters would likely seek to reduce their exposure to online content risks, i.e., by reducing the scope of coverage, reducing limits, and increasing retentions. How these changes would manifest, and the pain for all involved, would likely depend on how quickly such changes in policyholders’ risk profiles manifest. 

Small or specialty carriers caught unprepared could be forced to exit the market if they experienced a sharp spike in claims or unexpected increase in needed reserves. Larger, multiline carriers may respond by voluntarily reducing or withdrawing their participation in this space. Insurers exposed to ancillary content risk may simply exclude it from cover if adequate price increases are impractical. Such reactions could result in content coverage becoming harder to obtain or unavailable altogether. This, in turn, would incentivize organizations to limit or avoid certain digital activities.

Finding a More Thoughtful Approach

The tension between calls for reform of Section 230 and the potential for disrupting online activity does not mean that political leaders and courts should ignore these issues. Rather, it means that what’s required is a thoughtful, clear, and predictable approach to any changes, with the goal of maximizing the clarity of the changes and their application and minimizing any resulting litigation. Regardless of whether accomplished through legislation or the judicial process, addressing the following issues could minimize the duration and severity of any period of harmful disruption regarding content-risk:

  1. Presumptive immunity – Including an express statement in the definition of “interactive computer service,” or inferring one judicially, to clarify that platforms hosting third-party content enjoy a rebuttable presumption that statutory immunity applies would discourage frivolous litigation as courts establish precedent defining the applicability of any other revisions. 
  1. Specify the grounds for losing immunity – Clarify, at a minimum, what constitutes “good faith” with respect to content restrictions and further clarify what material is or is not “objectionable,” as it relates to newsworthy content or actions that trigger loss of immunity.
  1. Specify the scope and duration of any loss of immunity – Clarify whether the loss of immunity is total, categorical, or specific to the situation under review and the duration of that loss of immunity, if applicable.
  1. Reinstatement of immunity, subject to burden-shifting – Clarify what a platform must do to reinstate statutory immunity on a go-forward basis and clarify that it bears the burden of proving its go-forward conduct entitled it to statutory protection.
  1. Address associated issues – Any clarification or interpretation should address other issues likely to arise, such as the effect and weight to be given to a platform’s application of its community standards, adherence to neutral takedown/complain procedures, etc. Care should be taken to avoid overcorrecting and creating a “heckler’s veto.” 
  1. Deferred effect – If change is made legislatively, the effective date should be deferred for a reasonable time to allow platforms sufficient opportunity to adjust their current risk-management policies, contractual arrangements, content publishing and storage practices, and insurance arrangements in a thoughtful, orderly fashion that accounts for the new rules.

Ultimately, legislative and judicial stakeholders will chart their own course to address the widespread dissatisfaction with Section 230. More important than any of these specific policy suggestions is the principle underpins them: that any changes incorporate due consideration for the potential direct and downstream harm that can be caused if policy is not clear, comprehensive, and designed to minimize unnecessary litigation. 

It is no surprise that, in the years since Section 230 of the Communications Decency Act was passed, the environment and risks associated with digital platforms have evolved or that those changes have created a certain amount of friction in the law’s application. Policymakers should employ a holistic approach when evaluating their legislative and judicial options to revise or clarify the application of Section 230. Doing so in a targeted, predictable fashion should help to mitigate or avoid the risk of increased litigation and other unintended consequences that might otherwise prove harmful to online platforms in the commercial insurance market.

Aaron Tilley is a senior insurance executive with more than 16 years of commercial insurance experience in executive management, underwriting, legal, and claims working in or with the U.S., Bermuda, and London markets. He has served as chief underwriting officer of a specialty media E&O and cyber-liability insurer and as coverage counsel representing international insurers with respect to a variety of E&O and advertising liability claims


[1] The triple-trigger method allowed a policy to be accessed based on the date of the injury-in-fact, manifestation of injury, or exposure to substances known to cause injury. The continuous trigger allowed all policies issued by an insurer, not just one, to be accessed if a triggering event could be established during the policy period.

In what has become regularly scheduled programming on Capitol Hill, Facebook CEO Mark Zuckerberg, Twitter CEO Jack Dorsey, and Google CEO Sundar Pichai will be subject to yet another round of congressional grilling—this time, about the platforms’ content-moderation policies—during a March 25 joint hearing of two subcommittees of the House Energy and Commerce Committee.

The stated purpose of this latest bit of political theatre is to explore, as made explicit in the hearing’s title, “social media’s role in promoting extremism and misinformation.” Specific topics are expected to include proposed changes to Section 230 of the Communications Decency Act, heightened scrutiny by the Federal Trade Commission, and misinformation about COVID-19—the subject of new legislation introduced by Rep. Jennifer Wexton (D-Va.) and Sen. Mazie Hirono (D-Hawaii).

But while many in the Democratic majority argue that social media companies have not done enough to moderate misinformation or hate speech, it is a problem with no realistic legal fix. Any attempt to mandate removal of speech on grounds that it is misinformation or hate speech, either directly or indirectly, would run afoul of the First Amendment.

Much of the recent focus has been on misinformation spread on social media about the 2020 election and the COVID-19 pandemic. The memorandum for the March 25 hearing sums it up:

Facebook, Google, and Twitter have long come under fire for their role in the dissemination and amplification of misinformation and extremist content. For instance, since the beginning of the coronavirus disease of 2019 (COVID-19) pandemic, all three platforms have spread substantial amounts of misinformation about COVID-19. At the outset of the COVID-19 pandemic, disinformation regarding the severity of the virus and the effectiveness of alleged cures for COVID-19 was widespread. More recently, COVID-19 disinformation has misrepresented the safety and efficacy of COVID-19 vaccines.

Facebook, Google, and Twitter have also been distributors for years of election disinformation that appeared to be intended either to improperly influence or undermine the outcomes of free and fair elections. During the November 2016 election, social media platforms were used by foreign governments to disseminate information to manipulate public opinion. This trend continued during and after the November 2020 election, often fomented by domestic actors, with rampant disinformation about voter fraud, defective voting machines, and premature declarations of victory.

It is true that, despite social media companies’ efforts to label and remove false content and bar some of the biggest purveyors, there remains a considerable volume of false information on social media. But U.S. Supreme Court precedent consistently has limited government regulation of false speech to distinct categories like defamation, perjury, and fraud.

The Case of Stolen Valor

The court’s 2011 decision in United States v. Alvarez struck down as unconstitutional the Stolen Valor Act of 2005, which made it a federal crime to falsely claim to have earned a military medal. A four-justice plurality opinion written by Justice Anthony Kennedy, along with a two-justice concurrence, both agreed that a statement being false did not, by itself, exclude it from First Amendment protection. 

Kennedy’s opinion noted that while the government may impose penalties for false speech connected with the legal process (perjury or impersonating a government official); with receiving a benefit (fraud); or with harming someone’s reputation (defamation); the First Amendment does not sanction penalties for false speech, in and of itself. The plurality exhibited particular skepticism toward the notion that government actors could be entrusted as a “Ministry of Truth,” empowered to determine what categories of false speech should be made illegal:

Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle. Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth… Were this law to be sustained, there could be an endless list of subjects the National Government or the States could single out… Were the Court to hold that the interest in truthful discourse alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a material advantage, it would give government a broad censorial power unprecedented in this Court’s cases or in our constitutional tradition. The mere potential for the exercise of that power casts a chill, a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a foundation of our freedom. [EMPHASIS ADDED]

As noted in the opinion, declaring false speech illegal constitutes a content-based restriction subject to “exacting scrutiny.” Applying that standard, the court found “the link between the Government’s interest in protecting the integrity of the military honors system and the Act’s restriction on the false claims of liars like respondent has not been shown.” 

While finding that the government “has not shown, and cannot show, why counterspeech would not suffice to achieve its interest,” the plurality suggested a more narrowly tailored solution could be simply to publish Medal of Honor recipients in an online database. In other words, the government could overcome the problem of false speech by promoting true speech. 

In 2012, President Barack Obama signed an updated version of the Stolen Valor Act that limited its penalties to situations where a misrepresentation is shown to result in receipt of some kind of benefit. That places the false speech in the category of fraud, consistent with the Alvarez opinion.

A Social Media Ministry of Truth

Applying the Alvarez standard to social media, the government could (and already does) promote its interest in public health or election integrity by publishing true speech through official channels. But there is little reason to believe the government at any level could regulate access to misinformation. Anything approaching an outright ban on accessing speech deemed false by the government not only would not be the most narrowly tailored way to deal with such speech, but it is bound to have chilling effects even on true speech.

The analysis doesn’t change if the government instead places Big Tech itself in the position of Ministry of Truth. Some propose making changes to Section 230, which currently immunizes social media companies from liability for user speech (with limited exceptions), regardless what moderation policies the platform adopts. A hypothetical change might condition Section 230’s liability shield on platforms agreeing to moderate certain categories of misinformation. But that would still place the government in the position of coercing platforms to take down speech. 

Even the “fix” of making social media companies liable for user speech they amplify through promotions on the platform, as proposed by Sen. Mark Warner’s (D-Va.) SAFE TECH Act, runs into First Amendment concerns. The aim of the bill is to regard sponsored content as constituting speech made by the platform, thus opening the platform to liability for the underlying misinformation. But any such liability also would be limited to categories of speech that fall outside First Amendment protection, like fraud or defamation. This would not appear to include most of the types of misinformation on COVID-19 or election security that animate the current legislative push.

There is no way for the government to regulate misinformation, in and of itself, consistent with the First Amendment. Big Tech companies are free to develop their own policies against misinformation, but the government may not force them to do so. 

Extremely Limited Room to Regulate Extremism

The Big Tech CEOs are also almost certain to be grilled about the use of social media to spread “hate speech” or “extremist content.” The memorandum for the March 25 hearing sums it up like this:

Facebook executives were repeatedly warned that extremist content was thriving on their platform, and that Facebook’s own algorithms and recommendation tools were responsible for the appeal of extremist groups and divisive content. Similarly, since 2015, videos from extremists have proliferated on YouTube; and YouTube’s algorithm often guides users from more innocuous or alternative content to more fringe channels and videos. Twitter has been criticized for being slow to stop white nationalists from organizing, fundraising, recruiting and spreading propaganda on Twitter.

Social media has often played host to racist, sexist, and other types of vile speech. While social media companies have community standards and other policies that restrict “hate speech” in some circumstances, there is demand from some public officials that they do more. But under a First Amendment analysis, regulating hate speech on social media would fare no better than the regulation of misinformation.

The First Amendment doesn’t allow for the regulation of “hate speech” as its own distinct category. Hate speech is, in fact, as protected as any other type of speech. There are some limited exceptions, as the First Amendment does not protect incitement, true threats of violence, or “fighting words.” Some of these flatly do not apply in the online context. “Fighting words,” for instance, applies only in face-to-face situations to “those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.”

One relevant precedent is the court’s 1992 decision in R.A.V. v. St. Paul, which considered a local ordinance in St. Paul, Minnesota, prohibiting public expressions that served to cause “outrage, alarm, or anger with respect to racial, gender or religious intolerance.” A juvenile was charged with violating the ordinance when he created a makeshift cross and lit it on fire in front of a black family’s home. The court unanimously struck down the ordinance as a violation of the First Amendment, finding it an impermissible content-based restraint that was not limited to incitement or true threats.

By contrast, in 2003’s Virginia v. Black, the Supreme Court upheld a Virginia law outlawing cross burnings done with the intent to intimidate. The court’s opinion distinguished R.A.V. on grounds that the Virginia statute didn’t single out speech regarding disfavored topics. Instead, it was aimed at speech that had the intent to intimidate regardless of the victim’s race, gender, religion, or other characteristic. But the court was careful to limit government regulation of hate speech to instances that involve true threats or incitement.

When it comes to incitement, the legal standard was set by the court’s landmark Brandenberg v. Ohio decision in 1969, which laid out that:

the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. [EMPHASIS ADDED]

In other words, while “hate speech” is protected by the First Amendment, specific types of speech that convey true threats or fit under the related doctrine of incitement are not. The government may regulate those types of speech. And they do. In fact, social media users can be, and often are, charged with crimes for threats made online. But the government can’t issue a per se ban on hate speech or “extremist content.”

Just as with misinformation, the government also can’t condition Section 230 immunity on platforms removing hate speech. Insofar as speech is protected under the First Amendment, the government can’t specifically condition a government benefit on its removal. Even the SAFE TECH Act’s model for holding platforms accountable for amplifying hate speech or extremist content would have to be limited to speech that amounts to true threats or incitement. This is a far narrower category of hateful speech than the examples that concern legislators. 

Social media companies do remain free under the law to moderate hateful content as they see fit under their terms of service. Section 230 immunity is not dependent on whether companies do or don’t moderate such content, or on how they define hate speech. But government efforts to step in and define hate speech would likely run into First Amendment problems unless they stay focused on unprotected threats and incitement.

What Can the Government Do?

One may fairly ask what it is that governments can do to combat misinformation and hate speech online. The answer may be a law that requires takedowns by court order of speech after it is declared illegal, as proposed by the PACT Act, sponsored in the last session by Sens. Brian Schatz (D-Hawaii) and John Thune (R-S.D.). Such speech may, in some circumstances, include misinformation or hate speech.

But as outlined above, the misinformation that the government can regulate is limited to situations like fraud or defamation, while the hate speech it can regulate is limited to true threats and incitement. A narrowly tailored law that looked to address those specific categories may or may not be a good idea, but it would likely survive First Amendment scrutiny, and may even prove a productive line of discussion with the tech CEOs.

President Donald Trump has repeatedly called for repeal of Section 230. But while Trump and fellow conservatives decry Big Tech companies for their alleged anti-conservative bias, including at yet more recent hearings, their issue is not actually with Section 230. It’s with the First Amendment. 

Conservatives can’t actually do anything directly about how social media platforms moderate content because it is the First Amendment that grants those platforms a right to editorial discretion. Even FCC Commissioner Brendan Carr, who strongly opposes “Big Tech censorship,” recognizes this

By the same token, even if one were to grant that conservatives are right about the bias of moderators at these large social media platforms, it does not follow that removal of Section 230 immunity would alter that bias. In fact, in a world without Section 230 immunity, there still would be no legal cause of action for political bias. 

The truth is that conservatives use Section 230 immunity for leverage over social media platforms. The hope is that, because social media platforms desire the protections of civil immunity for third-party content, they will follow whatever conditions the government puts on their editorial discretion. But the attempt to end-run the First Amendment’s protections is also unconstitutional.

There is no cause of action for political bias by online platforms if we repeal Section 230

Consider the counterfactual: if there were no Section 230 to immunize them from liability, under what law would platforms face a viable cause of action for political bias? Conservative critics never answer this question. Instead, they focus on the irrelevant distinction between publishers and platforms. Or they talk about how Section 230 is a giveaway to Big Tech. But none consider the actual relationship between Section 230 immunity and alleged political bias.

But let’s imagine we’ve done what President Trump has called for and repealed Section 230. Where does that leave conservatives?

Unfortunately, it leaves them without any cause of action. There is no law passed by Congress or any state legislature, no regulation promulgated by the Federal Communications Commission or the Federal Trade Commission, no common law tort action that can be asserted against online platforms to force them to carry speech they don’t wish to carry. 

The difficulties of pursuing a contract claim for political bias

The best argument for conservatives is that, without Section 230 immunity, online platforms could be more easily held to any contractual restraints in their terms of service. If a platform promises, for instance, that it will moderate speech in a politically neutral way, a user could make the case that the platform violated its terms of service if it acted with political bias in her particular case.

For the vast majority of users, it is unclear whether there are damages from having a post fact-checked or removed. But for users who share in advertising revenue, the concrete injury from a moderation decision is more obvious. PragerU, for example, has (unsuccessfully) sued Google for being put in Restricted Mode on YouTube, which reduces its reach and advertising revenue. 

Even where there is a concrete injury that gets a case into court, that doesn’t necessarily mean there is a valid contract claim. In PragerU’s case against Google, a California court dismissed contract claims because the YouTube terms of service contract was written to allow the platform to retain discretion over what is published. Specifically, the court found that there can be no implied covenant of good faith and fair dealing where “YouTube reserves the right to remove Content without prior notice” and to “discontinue any aspect of the Service at any time.”

Breach-of-contract claims for moderation practices are highly dependent on what is actually promised in the terms of service. For instance, under Facebook’s TOS the company retains the right “to remove or restrict access to content that is in violation” of its community standards. Facebook does provide a process for users to request further review, but retains the right to remove content. The community standards also give Facebook broad discretion to determine, among other things, what counts as hate speech or false news. It is exceedingly unlikely that a court would ever have a basis to find a contract violation by Facebook if the company can reasonably point to a user’s violation of its terms of service. 

For example, in Ebeid v. Facebook, the U.S. Northern District of California dismissed fraud and breach of contract claims, finding the plaintiff failed to allege what contractual provision Facebook breached, that Facebook retained discretion over what ads would be posted, and that the plaintiff suffered no damages because no money was taken to be spent on the ads. The court also dismissed an implied covenant of good faith and fair dealing claim because Facebook retained the right to “remove or disapprove any post or ad at Facebook’s sole discretion.”

While the conservative critique has been that social media platforms do too much moderation—in the form of politically biased removals, fact-checking, and demonetization—others believe platforms do far too little to restrain bad conduct by users. But as long as social media platforms retain editorial discretion in their terms of service and make no other promises that can be relied upon by their users, there is little basis for a contract claim. 

The First Amendment protects the moderation policies of social media platforms, and there is no way around this

With no reasonable cause of action for political bias under the law, conservatives dangle the threat of making changes to Section 230 immunity that could prove costly to the social media platforms in order to extract concessions from the platforms to alter their practices.

This is why there are no serious efforts to actually repeal Section 230, as President Trump has asked for repeatedly. Instead, several bills propose to amend Section 230, while a rulemaking by the FCC seeks to clarify its meaning. 

But none of these proposed bills would directly affect platforms’ ability to make “biased” moderation decisions. Put simply: the First Amendment protects social media platforms’ editorial discretion. They may set rules to use their platforms, just as any private person may set rules for their own property. If I kick someone off my property for saying racist things, the First Amendment (as well as regular property law) protects my right to do so. Only under extremely limited circumstances can the government change this baseline rule and survive constitutional scrutiny.

Social media platforms’ right to editorial discretion is the same as that enjoyed by newspapers. In Miami Herald Publishing Co. v. Tornillo, the Supreme Court found:

The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials—whether fair or unfair—constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time. 

Social media platforms, just like any other property owner, have the right to determine what they want displayed on their property. In other words, Facebook, Google, and Twitter have the right to moderate content on news feeds, search results, and timelines. The attempted constitutional end-run—threatening to remove immunity for third-party content unrelated to political bias, like defamation and other tortious acts, unless social media platforms give up their right to editorial discretion over political speech—is just as unconstitutional as directly imposing “fairness” requirements on social media platforms.

The Supreme Court has held that Congress may not leverage a government benefit to regulate a speech interest outside of the benefit’s scope. This is called the unconstitutional conditions doctrine. It basically delineates the level of regulation the government can undertake through subsidizing behavior. The government can’t condition a government benefit on giving up editorial discretion over political speech.

The point of Section 230 immunity is to remedy the moderator’s dilemma set up by Stratton Oakmont v. Prodigy, which held that if a platform chose to moderate third-party speech at all, they would be liable for what was not removed. Section 230 is not about compelling political neutrality on platforms, because it can’t be consistent with the First Amendment. Civil immunity for third-party speech online is an important benefit for social media platforms because it holds they are not liable for the acts of third-parties, with limited exceptions. Without it, platforms would restrict opportunities for third-parties to post out of fear of liability

In sum, the government may not condition enjoyment of a government benefit upon giving up a constitutionally protected right. Section 230 immunity is a clear government benefit. The right to editorial discretion is clearly protected by the First Amendment. Because the entire point of conservative Section 230 reform efforts is to compel social media platforms to carry speech they otherwise desire to remove, it fails this basic test.

Conclusion

Fundamentally, the conservative push to reform Section 230 in response to the alleged anti-conservative bias of major social media platforms is not about policy. Really, it’s about waging a culture war against the perceived “liberal elites” from Silicon Valley, just as there is an ongoing culture war against perceived “liberal elites” in the mainstream media, Hollywood, and academia. But fighting this culture war is not worth giving up conservative principles of free speech, limited government, and free markets.

Over at the Federalist Society’s blog, there has been an ongoing debate about what to do about Section 230. While there has long-been variety in what we call conservatism in the United States, the most prominent strains have agreed on at least the following: Constitutionally limited government, free markets, and prudence in policy-making. You would think all of these values would be important in the Section 230 debate. It seems, however, that some are willing to throw these principles away in pursuit of a temporary political victory over perceived “Big Tech censorship.” 

Constitutionally Limited Government: Congress Shall Make No Law

The First Amendment of the United States Constitution states: “Congress shall make no law… abridging the freedom of speech.” Originalists on the Supreme Court have noted that this makes clear that the Constitution protects against state action, not private action. In other words, the Constitution protects a negative conception of free speech, not a positive conception.

Despite this, some conservatives believe that Section 230 should be about promoting First Amendment values by mandating private entities are held to the same standards as the government. 

For instance, in his Big Tech and the Whole First Amendment, Craig Parshall of the American Center for Law and Justice (ACLJ) stated:

What better example of objective free speech standards could we have than those First Amendment principles decided by justices appointed by an elected president and confirmed by elected members of the Senate, applying the ideals laid down by our Founders? I will take those over the preferences of brilliant computer engineers any day.

In other words, he thinks Section 230 should be amended to only give Big Tech the “subsidy” of immunity if it commits to a First Amendment-like editorial regime. To defend the constitutionality of such “restrictions on Big Tech”, he points to the Turner intermediate scrutiny standard, in which the Supreme Court upheld must-carry provisions against cable networks. In particular, Parshall latches on to the “bottleneck monopoly” language from the case to argue that Big Tech is similarly situated to cable providers at the time of the case.

Turner, however, turned more on the “special characteristics of the cable medium” that gave it the bottleneck power than the market power itself. As stated by the Supreme Court:

When an individual subscribes to cable, the physical connection between the television set and the cable network gives the cable operator bottleneck, or gatekeeper, control over most (if not all) of the television programming that is channeled into the subscriber’s home. Hence, simply by virtue of its ownership of the essential pathway for cable speech, a cable operator can prevent its subscribers from obtaining access to programming it chooses to exclude. A cable operator, unlike speakers in other media, can thus silence the voice of competing speakers with a mere flick of the switch.

Turner v. FCC, 512 U.S. 622, 656 (1994).

None of the Big Tech companies has the comparable ability to silence competing speakers with a flick of the switch. In fact, the relationship goes the other way on the Internet. Users can (and do) use multiple Big Tech companies’ services, as well as those of competitors which are not quite as big. Users are the ones who can switch with a click or a swipe. There is no basis for treating Big Tech companies any differently than other First Amendment speakers.

Like newspapers, Big Tech companies must use their editorial discretion to determine what is displayed and where. Just like those newspapers, Big Tech has the First Amendment right to editorial discretion. This, not Section 230, is the bedrock law that gives Big Tech companies the right to remove content.

Thus, when Rachel Bovard of the Internet Accountability Project argues that the FCC should remove the ability of tech platforms to engage in viewpoint discrimination, she makes a serious error in arguing it is Section 230 that gives them the right to remove content.

Immediately upon noting that the NTIA petition seeks clarification on the relationship between (c)(1) and (c)(2), Bovard moves right to concern over the removal of content. “Unfortunately, embedded in that section [(c)(2)] is a catch-all phrase, ‘otherwise objectionable,’ that gives tech platforms discretion to censor anything that they deem ‘otherwise objectionable.’ Such broad language lends itself in practice to arbitrariness.” 

In order for CDA 230 to “give[] tech platforms discretion to censor,” they would have to not have that discretion absent CDA 230. Bovard totally misses the point of the First Amendment argument, stating:

Yet DC’s tech establishment frequently rejects this argument, choosing instead to focus on the First Amendment right of corporations to suppress whatever content they so choose, never acknowledging that these choices, when made at scale, have enormous ramifications. . . . 

But this argument intentionally sidesteps the fact that Sec. 230 is not required by the First Amendment, and that its application to tech platforms privileges their First Amendment behavior in a unique way among other kinds of media corporations. Newspapers also have a First Amendment right to publish what they choose—but they are subject to defamation and libel laws for content they write, or merely publish. Media companies also make First Amendment decisions subject to a thicket of laws and regulations that do not similarly encumber tech platforms.

There is the merest kernel of truth in the lines quoted above. Newspapers are indeed subject to defamation and libel laws for what they publish. But, as should be obvious, liability for publication entails actually publishing something. And what some conservatives are concerned about is platforms’ ability to not publish something: to take down conservative content.

It might be simpler if the First Amendment treated published speech and unpublished speech the same way. But it doesn’t. One can be liable for what one speaks, writes, or publishes on behalf of others. Indeed, even with the full protection of the First Amendment, there is no question that newspapers can be held responsible for delicts caused by content they publish. But no newspaper has ever been held responsible for anything they didn’t publish.

Free Markets: Competition as the Bulwark Against Abuses, not Regulation

Conservatives have long believed in the importance of property rights, exchange, and the power of the free market to promote economic growth. Competition is seen as the protector of the consumer, not big government regulators. In the latter half of the twentieth century into the twenty-first century, conservatives have fought for capitalism over socialism, free markets over regulation, and competition over cronyism. But in the name of combating anti-conservative bias online, they are willing to throw these principles away.

The bedrock belief in the right of property owners to decide the terms of how they want to engage with others is fundamental to American conservatism. As stated by none other than Bovard (along with co-author Jim Demint in their book Conservative: Knowing What to Keep):

Capitalism is nothing more or less than the extension of individual freedom from the political and cultural realms to the economy. Just as government isn’t supposed to tell you how to pray, or what to think, or what sports teams to follow or books to read, it’s not supposed to tell you what to do with your own money and property.

Conservatives normally believe that it is the free choices of consumers and producers in the marketplace that maximize consumer welfare, rather than the choices of politicians and bureaucrats. Competition, in other words, is what protects us from abuses in the marketplace. Again as Bovard and Demint rightly put it:

Under the free enterprise system, money is not redistributed by a central government bureau. It goes wherever people see value. Those who create value are rewarded which then signals to the rest of the economy to up their game. It’s continuous democracy.

To get around this, both Parshall and Bovard make much of the “market dominance” of tech platforms. The essays take the position that tech platforms have nearly unassailable monopoly power which makes them unaccountable. Bovard claims that “mega-corporations have as much power as the government itself—and in some ways, more power, because theirs is unchecked and unaccountable.” Parshall even connects this to antitrust law, stating:  

This brings us to another kind of innovation, one that’s hidden from the public view. It has to do with how Big Tech companies use both algorithms plus human review during content moderation. This review process has resulted in the targeting, suppression, or down-ranking of primarily conservative content. As such, this process, should it continue, should be considered a kind of suppressive “innovation” in a quasi-antitrust analysis.

How the process harms “consumer welfare” is obvious. A more competitive market could produce social media platforms designing more innovational content moderation systems that honor traditional free speech and First Amendment norms while still offering features and connectivity akin to the huge players.

Antitrust law, in theory, would be a good way to handle issues of market power and consumer harm that results from non-price effects. But it is difficult to see how antitrust could handle the issue of political bias well:

Just as with privacy and other product qualities, the analysis becomes increasingly complex first when tradeoffs between price and quality are introduced, and then even more so when tradeoffs between what different consumer groups perceive as quality is added. In fact, it is more complex than privacy. All but the most exhibitionistic would prefer more to less privacy, all other things being equal. But with political media consumption, most would prefer to have more of what they want to read available, even if it comes at the expense of what others may want. There is no easy way to understand what consumer welfare means in a situation where one group’s preferences need to come at the expense of another’s in moderation decisions.

Neither antitrust nor quasi-antitrust regimes are well-suited to dealing with the perceived harm of anti-conservative bias. However unfulfilling this is to some conservatives, competition and choice are better answers to perceived political bias than the heavy hand of government. 

Prudence: Awareness of Unintended Consequences

Another bedrock principle of conservatism is to be aware of unintended consequences when making changes to long-standing laws and policies. In regulatory matters, cost-benefit analysis is employed to evaluate whether policies are improving societal outcomes. Using economic thinking to understand the likely responses to changes in regulation is fundamental to American conservatism. Or as Bovard and Demint’s book title suggests, conservatism is about knowing what to keep. 

Bovard has argued that since conservatism is a set of principles, not a dogmatic ideology, it can be in favor of fighting against the collectivism of Big Tech companies imposing their political vision upon the world. Conservatism, in this Kirkian sense, doesn’t require particular policy solutions. But this analysis misses what has worked about Section 230 and how the very tech platforms she decries have greatly benefited society. Prudence means understanding what has worked and only changing what has worked in a way that will improve upon it.

The benefits of Section 230 immunity in promoting platforms for third-party speech are clear. It is not an overstatement to say that Section 230 contains “The Twenty-Six Words that Created the Internet.” It is important to note that Section 230 is not only available to Big Tech companies. It is available to all online platforms who host third-party speech. Any reform efforts at Section 230 must know what to keep.In a sense, Section (c)(1) of Section 230 does, indeed, provide greater protection for published content online than the First Amendment on its own would offer: it extends the First Amendment’s permissible scope of published content for which an online service cannot be held liable to include otherwise actionable third-party content.

But let’s be clear about the extent of this protection. It doesn’t protect anything a platform itself publishes, or even anything in which it has a significant hand in producing. Why don’t offline newspapers enjoy this “handout” (though the online versions clearly do for comments)? Because they don’t need it, and because — yes, it’s true — it comes at a cost. How much third-party content would newspapers publish without significant input from the paper itself if only they were freed from the risk of liability for such content? None? Not much? The New York Times didn’t build and sustain its reputation on the slapdash publication of unedited ramblings by random commentators. But what about classifieds? Sure. There would be more classified ads, presumably. More to the point, newspapers would exert far less oversight over the classified ads, saving themselves the expense of moderating this one, small corner of their output.

There is a cost to traditional newspapers from being denied the extended protections of Section 230. But the effect is less third-party content in parts of the paper that they didn’t wish to have the same level of editorial control. If Section 230 is a “subsidy” as critics put it, then what it is subsidizing is the hosting of third-party speech. 

The Internet would look vastly different if it was just the online reproduction of the offline world. If tech platforms were responsible for all third-party speech to the degree that newspapers are for op-eds, then they would likely moderate it to the same degree, making sure there is nothing which could expose them to liability before publishing. This means there would be far less third-party speech on the Internet.

In fact, it could be argued that it is smaller platforms who would be most affected by the repeal of Section 230 immunity. Without it, it is likely that only the biggest tech platforms would have the necessary resources to dedicate to content moderation in order to avoid liability.

Proposed Section 230 reforms will likely have unintended consequences in reducing third-party speech altogether, including conservative speech. For instance, a few bills have proposed only allowing moderation for reasons defined by statute if the platform has an “objectively reasonable belief” that the speech fits under such categories. This would likely open up tech platforms to lawsuits over the meaning of “objectively reasonable belief” that could deter them from wanting to host third-party speech altogether. Similarly, lawsuits for “selective enforcement” of a tech platform’s terms of service could lead them to either host less speech or change their terms of service.

This could actually exacerbate the issue of political bias. Allegedly anti-conservative tech platforms could respond to a “good faith” requirement in enforcing its terms of service by becoming explicitly biased. If the terms of service of a tech platform state grounds which would exclude conservative speech, a requirement of “good faith” enforcement of those terms of service will do nothing to prevent the bias. 

Conclusion

Conservatives would do well to return to their first principles in the Section 230 debate. The Constitution’s First Amendment, respect for free markets and property rights, and appreciation for unintended consequences in changing tech platform incentives all caution against the current proposals to condition Section 230 immunity on platforms giving up editorial discretion. Whether or not tech platforms engage in anti-conservative bias, there’s nothing conservative about abdicating these principles for the sake of political expediency.

In the latest congressional hearing, purportedly analyzing Google’s “stacking the deck” in the online advertising marketplace, much of the opening statement and questioning by Senator Mike Lee and later questioning by Senator Josh Hawley focused on an episode of alleged anti-conservative bias by Google in threatening to demonetize The Federalist, a conservative publisher, unless they exercised a greater degree of control over its comments section. The senators connected this to Google’s “dominance,” arguing that it is only because Google’s ad services are essential that Google can dictate terms to a conservative website. A similar impulse motivates Section 230 reform efforts as well: allegedly anti-conservative online platforms wield their dominance to censor conservative speech, either through deplatforming or demonetization.

Before even getting into the analysis of how to incorporate political bias into antitrust analysis, though, it should be noted that there likely is no viable antitrust remedy. Even aside from the Section 230 debate, online platforms like Google are First Amendment speakers who have editorial discretion over their sites and apps, much like newspapers. An antitrust remedy compelling these companies to carry speech they disagree with would almost certainly violate the First Amendment.

But even aside from the First Amendment aspect of this debate, there is no easy way to incorporate concerns about political bias into antitrust. Perhaps the best way to understand this argument in the antitrust sense is as a non-price effects analysis. 

Political bias could be seen by end consumers as an important aspect of product quality. Conservatives have made the case that not only Google, but also Facebook and Twitter, have discriminated against conservative voices. The argument would then follow that consumer welfare is harmed when these dominant platforms leverage their control of the social media marketplace into the marketplace of ideas by censoring voices with whom they disagree. 

While this has theoretical plausibility, there are real practical difficulties. As Geoffrey Manne and I have written previously, in the context of incorporating privacy into antitrust analysis:

The Horizontal Merger Guidelines have long recognized that anticompetitive effects may “be manifested in non-price terms and conditions that adversely affect customers.” But this notion, while largely unobjectionable in the abstract, still presents significant problems in actual application. 

First, product quality effects can be extremely difficult to distinguish from price effects. Quality-adjusted price is usually the touchstone by which antitrust regulators assess prices for competitive effects analysis. Disentangling (allegedly) anticompetitive quality effects from simultaneous (neutral or pro-competitive) price effects is an imprecise exercise, at best. For this reason, proving a product-quality case alone is very difficult and requires connecting the degradation of a particular element of product quality to a net gain in advantage for the monopolist. 

Second, invariably product quality can be measured on more than one dimension. For instance, product quality could include both function and aesthetics: A watch’s quality lies in both its ability to tell time as well as how nice it looks on your wrist. A non-price effects analysis involving product quality across multiple dimensions becomes exceedingly difficult if there is a tradeoff in consumer welfare between the dimensions. Thus, for example, a smaller watch battery may improve its aesthetics, but also reduce its reliability. Any such analysis would necessarily involve a complex and imprecise comparison of the relative magnitudes of harm/benefit to consumers who prefer one type of quality to another.

Just as with privacy and other product qualities, the analysis becomes increasingly complex first when tradeoffs between price and quality are introduced, and then even more so when tradeoffs between what different consumer groups perceive as quality is added. In fact, it is more complex than privacy. All but the most exhibitionistic would prefer more to less privacy, all other things being equal. But with political media consumption, most would prefer to have more of what they want to read available, even if it comes at the expense of what others may want. There is no easy way to understand what consumer welfare means in a situation where one group’s preferences need to come at the expense of another’s in moderation decisions.

Consider the case of The Federalist again. The allegation is that Google is imposing their anticonservative bias by “forcing” the website to clean up its comments section. The argument is that since The Federalist needs Google’s advertising money, it must play by Google’s rules. And since it did so, there is now one less avenue for conservative speech.

What this argument misses is the balance Google and other online services must strike as multi-sided platforms. The goal is to connect advertisers on one side of the platform, to the users on the other. If a site wants to take advantage of the ad network, it seems inevitable that intermediaries like Google will need to create rules about what can and can’t be shown or they run the risk of losing advertisers who don’t want to be associated with certain speech or conduct. For instance, most companies don’t want to be associated with racist commentary. Thus, they will take great pains to make sure they don’t sponsor or place ads in venues associated with racism. Online platforms connecting advertisers to potential consumers must take that into consideration.

Users, like those who frequent The Federalist, have unpriced access to content across those sites and apps which are part of ad networks like Google’s. Other models, like paid subscriptions (which The Federalist also has available), are also possible. But it isn’t clear that conservative voices or conservative consumers have been harmed overall by the option of unpriced access on one side of the platform, with advertisers paying on the other side. If anything, it seems the opposite is the case since conservatives long complained about legacy media having a bias and lauded the Internet as an opportunity to gain a foothold in the marketplace of ideas.

Online platforms like Google must balance the interests of users from across the political spectrum. If their moderation practices are too politically biased in one direction or another, users could switch to another online platform with one click or swipe. Assuming online platforms wish to maximize revenue, they will have a strong incentive to limit political bias from its moderation practices. The ease of switching to another platform which markets itself as more free speech-friendly, like Parler, shows entrepreneurs can take advantage of market opportunities if Google and other online platforms go too far with political bias. 

While one could perhaps argue that the major online platforms are colluding to keep out conservative voices, this is difficult to square with the different moderation practices each employs, as well as the data that suggests conservative voices are consistently among the most shared on Facebook

Antitrust is not a cure-all law. Conservatives who normally understand this need to reconsider whether antitrust is really well-suited for litigating concerns about anti-conservative bias online. 

Twitter’s decision to begin fact-checking the President’s tweets caused a long-simmering distrust between conservatives and online platforms to boil over late last month. This has led some conservatives to ask whether Section 230, the ‘safe harbour’ law that protects online platforms from certain liability stemming from content posted on their websites by users, is allowing online platforms to unfairly target conservative speech. 

In response to Twitter’s decision, along with an Executive Order released by the President that attacked Section 230, Senator Josh Hawley (R – MO) offered a new bill targeting online platforms, the “Limiting Section 230 Immunity to Good Samaritans Act”. This would require online platforms to engage in “good faith” moderation according to clearly stated terms of service – in effect, restricting Section 230’s protections to online platforms deemed to have done enough to moderate content ‘fairly’.  

While seemingly a sensible standard, if enacted, this approach would violate the First Amendment as an unconstitutional condition to a government benefit, thereby  undermining long-standing conservative principles and the ability of conservatives to be treated fairly online. 

There is established legal precedent that Congress may not grant benefits on conditions that violate Constitutionally-protected rights. In Rumsfeld v. FAIR, the Supreme Court stated that a law that withheld funds from universities that did not allow military recruiters on campus would be unconstitutional if it constrained those universities’ First Amendment rights to free speech. Since the First Amendment protects the right to editorial discretion, including the right of online platforms to make their own decisions on moderation, Congress may not condition Section 230 immunity on platforms taking a certain editorial stance it has dictated. 

Aware of this precedent, the bill attempts to circumvent the obstacle by taking away Section 230 immunity for issues unrelated to anti-conservative bias in moderation. Specifically, Senator Hawley’s bill attempts to condition immunity for platforms on having terms of service for content moderation, and making them subject to lawsuits if they do not act in “good faith” in policing them. 

It’s not even clear that the bill would do what Senator Hawley wants it to. The “good faith” standard only appears to apply to the enforcement of an online platform’s terms of service. It can’t, under the First Amendment, actually dictate what those terms of service say. So an online platform could, in theory, explicitly state in their terms of service that they believe some forms of conservative speech are “hate speech” they will not allow.

Mandating terms of service on content moderation is arguably akin to disclosures like labelling requirements, because it makes clear to platforms’ customers what they’re getting. There are, however, some limitations under the commercial speech doctrine as to what government can require. Under National Institute of Family & Life Advocates v. Becerra, a requirement for terms of service outlining content moderation policies would be upheld unless “unjustified or unduly burdensome.” A disclosure mandate alone would not be unconstitutional. 

But it is clear from the statutory definition of “good faith” that Senator Hawley is trying to overwhelm online platforms with lawsuits on the grounds that they have enforced these rules selectively and therefore not in “good faith”.

These “selective enforcement” lawsuits would make it practically impossible for platforms to moderate content at all, because they would open them up to being sued for any moderation, including moderation  completely unrelated to any purported anti-conservative bias. Any time a YouTuber was aggrieved about a video being pulled down as too sexually explicit, for example, they could file suit and demand that Youtube release information on whether all other similarly situated users were treated the same way. Any time a post was flagged on Facebook, for example for engaging in online bullying or for spreading false information, it could similarly lead to the same situation. 

This would end up requiring courts to act as the arbiter of decency and truth in order to even determine whether online platforms are “selectively enforcing” their terms of service.

Threatening liability for all third-party content is designed to force online platforms to give up moderating content on a perceived political basis. The result will be far less content moderation on a whole range of other areas. It is precisely this scenario that Section 230 was designed to prevent, in order to encourage platforms to moderate things like pornography that would otherwise proliferate on their sites, without exposing themselves to endless legal challenge.

It is likely that this would be unconstitutional as well. Forcing online platforms to choose between exercising their First Amendment rights to editorial discretion and retaining the benefits of Section 230 is exactly what the “unconstitutional conditions” jurisprudence is about. 

This is why conservatives have long argued the government has no business compelling speech. They opposed the “fairness doctrine” which required that radio stations provide a “balanced discussion”, and in practice allowed courts or federal agencies to determine content  until President Reagan overturned it. Later, President Bush appointee and then-FTC Chairman Tim Muris rejected a complaint against Fox News for its “Fair and Balanced” slogan, stating:

I am not aware of any instance in which the Federal Trade Commission has investigated the slogan of a news organization. There is no way to evaluate this petition without evaluating the content of the news at issue. That is a task the First Amendment leaves to the American people, not a government agency.

And recently conservatives were arguing businesses like Masterpiece Cakeshop should not be compelled to exercise their First Amendment rights against their will. All of these cases demonstrate once the state starts to try to stipulate what views can and cannot be broadcast by private organisations, conservatives will be the ones who suffer.

Senator Hawley’s bill fails to acknowledge this. Worse, it fails to live up to the Constitution, and would trample over the rights to freedom of speech that it gives. Conservatives should reject it.