Op-Ed: States are the last line of defense against Big Tech

James Sherk,  November 30, 2021

By James Sherk in Washington Examiner

While the Biden administration appears uninterested in combating online censorship, that doesn’t mean conservatives are powerless to do anything about it. States can act, and they must if they hope to protect First Amendment freedoms.

Major technology companies such as Facebook, Twitter, and Google control most of the spread of information online. They openly use this power to suppress disfavored views. Big Tech deplatformed former President Donald Trump , suppressed reporting on Hunter Biden’s laptop scandal, and prohibited posts speculating that COVID-19 escaped from a lab in Wuhan, China. One poll found nearly half of the public knows someone who has been censored online. No wonder polling shows people overwhelmingly believe Big Tech companies are censoring their users.

These companies and their allies argue state governments have no power to prevent online censorship. They contend that Section 230 of the Communications Decency Act allows them to remove any posts they want. Moreover, they argue First Amendment free speech rights allow them to pick and choose what content they will host on their platform.

These arguments persuaded conservative states such as North Dakota and Utah not to pass laws combating tech censorship. However, Big Tech overstates its case. States can — and should — protect free speech in a manner consistent with the First Amendment and Section 230.

It is true that the First Amendment generally prevents the government from forcing companies to transmit a specific message. But the government can require communications companies to serve everyone impartially. “Common carrier” regulations prohibit telephone companies and telegraph lines before them from discriminating against particular users. The Supreme Court has long considered these requirements constitutional.

Imagine if your cellphone company cut your service because you were criticizing a particular politician. States can constitutionally prohibit such censorship. They can similarly stop Big Tech from discriminating against its users.

The Supreme Court has never interpreted the scope of the immunity Section 230 provides. It is true that some lower courts have interpreted the statute very broadly, reading it to protect virtually all decisions to restrict content. Other courts have paid closer attention to Section 230’s statutory text. These courts interpret its immunity much more narrowly. Under these “textual” precedents, Section 230 only immunizes platforms that take down content in “good faith.” That allows states to pass laws against bad faith content moderation, such as selectively applying terms of service to suppress disfavored views. Until the Supreme Court clarifies this judicial debate, states have room to act, relying on the textual precedents.

Of course, Big Tech will likely sue over any new laws. Companies quickly sued Florida and Texas when those states passed social media free speech laws earlier this year. A Clinton-appointed judge enjoined the Florida law — that ruling is under appeal — while the Texas lawsuit is ongoing. Both cases underscore the importance for state legislators of drafting new laws carefully to maximize their odds of legal success.

The America First Policy Institute has produced model legislation that legislators can use to prevent Big Tech censorship. This proposal treats major social media companies as common carriers. It prohibits them from deplatforming users and requires them to moderate content in good faith; they cannot selectively apply their terms of service. It also prohibits platforms from discriminating against content based on its political, philosophical, or religious views. These common carrier regulations fit comfortably within the textual interpretation of Section 230.

The draft bill also contains a legal backstop. Some of the courts that interpret Section 230 broadly, including the liberal 9th Circuit Court of Appeals, nonetheless hold that, if a platform contractually commits to content moderation standards, that promise is legally enforceable.

So, the model legislation encourages the platforms to protect free speech in their terms of service. It imposes hefty, but not crushing, fees on big social media platforms that do not protect free speech. It then exempts platforms that incorporate the common carrier free speech protections into their terms of service. These terms of service would let users sue over violations. Courts that take a broad view of Section 230 may nonetheless enforce these contracts, thereby protecting free speech.

Moreover, this provision would be difficult to sue against. States have broad authority to tax, meaning that judges are unlikely to strike down the new fees. So, if a lawsuit struck down the exemption for noncensorious platforms, Big Tech would simply have to pay the fees.

Big Tech is deciding who can speak on the internet and what they can say. The public does not have to submit to this corporate censorship. States have the power to protect free speech. The only question is, will they?

James Sherk is the Director of the Center for American Freedom at the America First Policy Institute (AFPI). He previously served as a special assistant to the president in the Domestic Policy Council at the White House during the Trump Administration.

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