Protecting Free Speech Requires Preserving Section 230

On April 27, Senator Bill Hagerty (R-TN) introduced the 21st Century Foundation for the Right to Express and Engage in Speech Act (21st Century FREE Speech Act/S.1384) and also penned an opinion piece in the Wall Street Journal. This legislation would subject technology companies to “common carrier” regulations, gut Section 230, and prohibit “censorship” by internet platform companies. However, this misguided and heavy-handed legislation represents a host of harms for consumers and threatens to upend the internet ecosystem.

The creation of Section 230 was a result of the decision in Stratton Oakmont, Inc. vs Prodigy Services Co. where Stratton Oakmont sued Prodigy and an unknown user who posted on the “Money Talk” bulletin board that Stratton Oakmont was engaging in criminal fraudulent activities. If you haven’t seen the film The Wolf of Wall Street (spoiler alert), they were committing fraudulent activities. However, they sued Prodigy claiming that the site should be treated as the “publisher” of the so-called defamation, and they won. In response, Congress passed liability protections in the form of Section 230 to overrule this ruling.

Section 230 of the Communications Decency Act shields technology companies from being treated as the speaker or publisher of the content on the site. This has allowed social media to host user-generated content without fear that something being published by an individual user will result in costly legal battles. Section 230 provides the opportunity for more speech, and the gutting of this protection would likely lead to more content moderation. The benefits of Section 230 are not limited to the few “Big Tech” companies either. Sites that utilize comment features or online reviews benefit from not being held responsible for the opinions of the users posting. If Section 230 was gutted, lawyers may have a field day taking libel defamation cases hand over fist, while consumers and small businesses would bear the brunt of the consequences.

Another concerning goal of this piece of legislation is that it seeks to answer Justice Clarence Thomas’s call for Congress to implement common carrier regulations on social media companies. Common carrier regulations are in place for telephone companies, railroads, and public utilities, and would require social media companies to host content regardless of viewpoint. At first glance, this might sound appealing for consumers, especially those who view technology companies as “censoring” conservatives. After all, if Democrats and Republicans are arguing over contentious topics, consumers would probably say they would like to hear both sides, or at the very least that both sides deserve to have their opinions disseminated. However, viewpoints are not limited to this mainstream view. Do consumers want to hear the “viewpoints” of terrorists, white nationalists, or other radical groups? Common carrier regulations would handcuff these companies from stopping the spread of speech most of us would prefer not to see or that can even represent a potential harm.

Similarly, while Facebook, Twitter, and other social media companies steal the spotlight, there are numerous other social media platforms for consumers to choose from. Some make the argument there is no perfect substitute for a site like Facebook, but this argument represents a misunderstanding of the social media market. After all, do consumers want two Facebooks, and would creating a near duplicate of Facebook be a wise investment for a startup? Sites like Tik Tok, Twitter, Discord, Clubhouse, and other social media sites wisely choose different approaches to attract consumers, which give consumers more choice. When talking about common carrier regulations for social media companies, it is important to remember that the internet is bigger than so-called “Big Tech.”

There is also a broader problem with the argument that social media companies should be considered “common carriers” due to the volume of speech that flows through these platforms. There is an inherent difficulty in deciding which companies are “social media.” Is Facebook primarily a social media company, or is it an advertising platform? As Joel Thayer, an attorney focused on telecommunications issues, pointed out, following the thread of Justice Thomas’s logic, it leaves the door open for net neutrality regulations across all of the internet. After all, if social media companies are determined to be a public utility, then how would the internet as a whole not be considered a public utility as well? Heavy-handed net neutrality regulations, as we’ve seen in California and from the FCC prior to the Restoring Internet Freedom Order, represent a harm to innovation, investment, and leave consumers worse off. Conservatives should be wary of endorsing a huge increase in government regulation on the internet.

Gutting Section 230 and implementing “common carrier” regulations would yank the corner stone that much of the internet was built upon. Some of those waving the banner of free speech are simultaneously holding a torch to free markets. A light-touch approach to internet regulation has allowed for rapid innovation and created economic growth. A study conducted by NERA Economic Consulting and the Internet Association found that reducing safe harbor protections would cost the U.S. 4.25 million jobs and reduce the GDP by half a trillion dollars. The U.S. has become a global technological leader, and we should not cede this position to adversaries and competitors by overregulating the internet and gutting Section 230.