Originally Published in the Wall Street Journal (Coauthored with Adam Candeub)
In an effort to “take a more aggressive stance,” Twitter announced on Nov. 3 that it will enact new and revised rules later this month to address graphic content, unwanted sexual advances, violent organizations, spam and “hateful” symbols and imagery on the social network. But one of these things is not like the others. Unlike regulating violent or harassing content that interferes with the experience of other users, prohibiting “hateful” imagery, symbols and content is a vague and subjective restriction—and one that would be unconstitutional if enforced by the government.
Twitter’s history of censoring content—such as when it blocked (though eventually restored) a pro-life ad by Rep. Marsha Blackburn and suspended Trump adviser Roger Stone’s account on Oct. 28—raises doubts as to whether these new rules will be applied fairly and consistently. The Anti-Defamation League, a member of Twitter’s Trust and Safety Council, includes the Confederate flag and Pepe the Frog in its database of hate symbols.
In reaction to political censorship on social media, many populist conservatives, including Tucker Carlson, Ann Coulter, and Steve Bannon, have called for the platforms to be publicly regulated. This sentiment spans the political spectrum. After Twitter suspended Harvey Weinstein accuser Rose McGowan, left wing journalist Glenn Greenwald tweeted: “At some point, it will hopefully become clear that demanding Silicon Valley executives regulate online speech is a terrible idea.”
But there is a way to change incentives so that the most popular communications platforms aren’t controlled by either the tech moguls or the government. Congress could discourage social media censorship simply by removing privileges enjoyed by social media platforms.
Section 230 of the 1996 Communications Decency Act grants “interactive computer services,” such as Twitter, Google, YouTube and Facebook , near total immunity for their users’ content. They have no liability resulting from anything that their users tweet or post. This is an extraordinary gift to internet companies that other industries do not enjoy. Newspapers can be held liable for the content of classified ads, and even a tavern can be liable for the graffiti scrawled on its bathroom stall.
Congress justified this gift on the grounds that “the Internet and other interactive computer services offer a forum for a true diversity of political discourse.” But with many of these internet services now restricting political discourse, Congress should condition its largesse: Section 230 immunity should be available only to internet companies that do not engage in prohibiting viewpoint discrimination against their users. Enabling a few gigantic internet firms to use their dominant social-media platforms to silence views with which they disagree counters the act’s very purpose.
Still others worry that social media networks do too little to curb obscene, harassing, criminal or violent posts. Legislators could fix this, too, by conditioning Section 230 immunity on the viewpoint-neutral enforcement of such rules. Laws commonly prevent private entities from viewpoint-based discrimination while allowing them to make reasonable restrictions on speech. Commercial airlines, for example, may ban passengers who swear, harass flight attendants or otherwise behave disruptively. They cannot stop people from flying based on their political opinions, no matter how offensive they may be. Reforming Section 230 would allow tech companies to focus on truly harmful content, such as revenge porn and sex trafficking, while also preventing them from using it as a pretext for politically based restrictions.
Social-media companies never sought to become global speech police, nor have they shown particular appetite or talent for the job. Google, Facebook and Twitter all initially resisted calls for strict speech policies, and they didn’t care about the content of their platforms until they became dominant. Now they possess great power, which they do not know how to wield. While conservatives accuse social networks of political bias, the mainstream media, European governments, and left-wing advocacy groups all demand the platforms enact stricter rules. Reforming Section 230 would remove the social media outlets from this political tug of war. More important, it would help restore a true marketplace of ideas online.
Mr. Candeub is a fellow at the Institute of Public Utilities and a law professor at Michigan State University. He previously worked at the Federal Communications Commission. Mr. Epstein is an antitrust attorney and freelance writer.
Monopolies in the Marketplace of Ideas 