BY DANIEL LYONS
Recent tech policy debates have been animated by the surprising push by both Democrats and Republicans to reform Section 230 of the Communications Decency Act, the cornerstone of internet law. But that bipartisan call masks a significant disagreement between the left and the right on why and how the law should be changed. For Republicans, the push to amend Section 230 is driven largely by concerns that social media platforms, as our primary conduits for online discussion, are disproportionately silencing conservative viewpoints.
But as I’ve discussed before, Section 230 is a suboptimal vehicle to address these concerns, as the whole point of the statute is to protect the editorial rights of interactive computer services. Rather than fixating on Section 230 as a tool, it is helpful to reframe the debate by asking how traditional conservative values should inform our analysis and what other vehicles are available to address the problem the right wishes to solve.
Conservative background principles
My sense is that there are at least two broad conservative principles that should inform the debate over internet regulation but which have received little attention thus far. The first is a Burkean skepticism about big, sweeping legal or social change. Edmund Burke, the father of modern conservatism, reminded us that we are not as smart as we think we are. The world we have is the product of countless decisions made before us, and tinkering with the status quo — even to pursue laudable ends — jeopardizes what gains we have achieved thus far. This seems directly applicable to the Section 230 debate: Much of the internet’s current ecosystem is built on the immunity that interactive computer services have from liability for their users’ speech. Altering that immunity could have the unintended consequence of inhibiting the very speech proponents wish to promote by inducing platforms to read and preapprove user posts for fear of liability.
The second is a respect for free speech and a distrust of government efforts to regulate the dissemination of ideas. When the Federal Communications Commission imposed the Fairness Doctrine, conservatives rightly recognized that far from vindicating constitutional protections, a government mandate that broadcasters allow both sides to be heard actually infringed on the broadcaster’s own First Amendment right of editorial control. Similarly, conservatives should recoil from laws that commandeer private property to promote ideas that the property owner disapproves of.
Alternative legal frameworks
Together, these suggest that reforming Section 230 is a poor vehicle for conservatives to address the problems they have identified. One might ask what other legal doctrines might be available — and the answer depends on what exactly the problem is that Republicans wish to address.
If the concern is that platforms are misrepresenting what they’re doing — promising to publish users’ messages but stealthily deplatforming conservative views — then the remedy might be the law of unfair or deceptive trade practices. This inquiry is complicated by the fact that most websites’ terms of service allow the company to delete offensive content. But it would suggest stronger transparency requirements so that sites engaged in political censoring own their choices publicly.
If instead the concern is that platforms treat conservatives differently than liberals based on their affiliation or beliefs, that sounds more like antidiscrimination law. Most such laws do not currently recognize political status as a protected class. But the tenor of Republican conversation, the sense of victimization that has animated conversations on the right, and the social shift toward increasing polarization suggest that perhaps this approach should be put on the table.
Finally, the concern may be that Congress has granted platforms immunity for carrying user speech without the requirement that they carry all users on a nondiscriminatory basis. That sounds like traditional common-carriage law. Though few if any on Capitol Hill have used this term, much of their rhetoric seems to suggest the unfairness of giving platforms the benefits of common carriage without the concomitant obligations.
This is not to suggest Congress should necessarily move in any of these directions. I believe in evidence-based decision-making, and I have not yet seen the case proven that social media displays systemic bias toward conservatives (as opposed to some high-profile anecdotes). And some members may be reluctant to embrace doctrines such as expanded antidiscrimination law or common-carriage obligations, which are more commonly associated with the left. But these legal frameworks better fit the concerns that have spurred Republicans to action on this issue, and viewing them through these lenses gives policymakers a better sense of what precisely the problem is and whether congressional action is an appropriate solution. By focusing on what exactly conservatives wish to solve, we can expand the field of legal options beyond simply threatening to repeal Section 230 as a stick to force platforms to play nice.
Daniel Lyons is a visiting fellow at the American Enterprise Institute.