So-Called Conservative Tech Proposal Is an Affront to the First Amendment

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Several prominent conservative groups have signaled their support for what some are calling a “small-government solution” to perceived anti-conservative bias by tech platforms such as Google and Facebook. The focus of their ire is Section 230 of the Communications Decency Act, which, for the most part, provides intermediary liability protection for tech companies from what their third-party users post. Through this protection, online platforms are able to moderate content as they see fit without assuming liability for all the countless media users post, bringing the issue back to the perceived problem of tech bias.

The purported conservative solution that seems to be gaining traction is to tie Section 230 intermediary liability protection to a “First Amendment standard.” Essentially, so long as companies do not remove any content that is otherwise protected by the First Amendment they will continue to be protected from liability over third-party content. There are a number of glaring problems with this idea, not the least of which is the fact that it is patently antithetical to the First Amendment itself.

To hold a private entity of any sort to a First Amendment standard is to be oblivious to how the First Amendment and indeed most of the rest of the Constitution works. Rights are guaranteed under federal law as negative rights, as opposed to positive rights. Negative rights are restrictions whereas positive rights are entitlements. Applying this framework to speech, it means that the government is generally prohibited from either restricting or forcing speech. This is opposed to you having the positive right to say whatever you want wherever, whenever you want. Such a positive right would infringe upon the rights of other private citizens. For example, you are not entitled to hold a political rally in your neighbor’s backyard. To apply a “First Amendment standard” to private tech companies and their digital backyards means violating the First Amendment itself. It inherently limits the speech and association rights of the private individuals who own these companies. Right off the bat, the proposal is oxymoronic.

If such an unconstitutional policy were to become public policy, the same conservatives pushing for it would likely be incredibly unhappy with its practical effects. For starters, a First Amendment standard for private Internet platforms would make them inherently unfriendly places for children, families, and many others. The First Amendment protects a very wide range of speech and other content that most would find to be quite objectionable. That is the entire point of the First Amendment. There’s no need to protect speech most people like. The reason why it is impossible to find pornography, for example, on platforms like Facebook or YouTube is precisely because they are not held to a First Amendment standard.

While many of the same people pushing this idea do not believe pornography should be protected speech, the lack of a First Amendment standard for private firms empowers them to remove speech that would require more draconian circumscriptions of the First Amendment to otherwise limit, such as pro-terrorist media, foreign government propaganda, and other content that may not be as clearly defined as pornography. This is not just a theoretical issue with the proposal. In another part of the communications sector where Congress has not shown as much care for how the First Amendment actually works, the Russian government has been able to force American cable companies to carry its 24-hour, commercial-free propaganda network, RT. Most all of the programming on RT is explicitly designed to undermine causes, such as American energy independence, about which conservatives deeply care.

A final problem worth highlighting, though certainly not the remaining or least of the problems, is the enormous financial cost/de-facto tax associated with such a First Amendment standard for big tech. As mentioned, this policy would force companies to host a significantly larger array of content than they do now. Although it is called cyberspace, there isn’t room for everything. Just as there is a limit on the amount of songs or videos your device’s hard drive can hold, so too is there a capacity limit on the servers owned by tech platforms. Without the ability to immediately filter chunks of content, such as data-intensive pornographic and violent videos, companies seeking to comply with the First Amendment standard would undoubtedly be forced to expend enormous sums to increase their network capacity. Ironically, to the extent companies would not be able to keep up with demand, or not be able to limit certain content through algorithms, a heckler’s veto would likely emerge and inherently limit the very political speech conservatives are seeking to protect.

After decades of undeniable bias in the other forms of media against conservatives, it is easy to see why conservatives are eager to prevent the same thing from happening on the Internet. However, the solution being offered here would do far more to undermine institutions conservatives cherish than any bias of online platforms.