Changing the Big Tech Ball Game
Rep. Jim Banks and Rep. Greg Steube have a new Section 230 bill that would stop the censorship and bring back Donald Trump
There’s a fear emanating from the Republican base, and it’s perfectly understandable: will Republicans actually Do Something about Big Tech censorship? Conservative voters might be forgiven for feeling a sense of déjà vu. Even those with the shortest of memories should remember that Republicans campaigned for multiple election cycles saying they would Do Something about Obamacare, only to come up short in the Do Something department during the summer of 2017.
That being said, I don’t feel pessimistic at all. I think there’s real reason for optimism.
I’ve written previously about the Republican-led effort to reform Section 230. In just the last year, Republicans have moved beyond rhetoric and are coming together to focus on advancing a specific policy to defend speech online. This needs to be applauded. Minority Leader Kevin McCarthy (R-California), Rep. Jim Jordan (R-Ohio), and Rep. Cathy McMorris-Rodgers (R-Washington) have all played a key role in making this happen.
If and when Republicans take back the House, we need to pass a Section 230 reform bill as quickly as possible — it needs to be a top priority. And thanks in part to the efforts of these leaders, it certainly looks like that’s the plan. Here’s what Minority Leader Kevin McCarthy said about Section 230 reform earlier this month:
“Big Tech platforms should not be allowed to use the shield of Section 230, which was designed to foster an open internet, to censor [F]irst [A]mendment protected free speech. House Republicans will be ready to take action that protects Americans when they express their constitutionally safeguarded views, just like we have laws on the books today that prohibit discrimination by corporations in many other contexts.”
But what will the final bill look like? Those are the details that are still being worked out. (Don’t worry, folks. It’s still January. We have plenty of time!)
It is important to differentiate between the various Section 230 bills that have been introduced. Some are objectively better than others. As I’ve said in the past, if we intend to invest the political capital necessary to pass such a reform into law, we should be absolutely certain that the legislation will protect free speech online for our candidates, activists, and voters.
At American Principles Project, we have proposed a simple three-pronged litmus test to determine whether a particular Section 230 reform bill is deserving of support:
Would President Trump be unconditionally allowed back on Facebook and Twitter?
Would Big Tech companies be prevented from engaging in election interference as they did in the 2020 elections?
Would conservative candidates, activists, and voters be allowed to advocate for political positions that depart from politically correct orthodoxy?
Thus far, only a few bills have really met the standards of this litmus test. We endorsed one of them, H.R. 285, the CASE-IT Act, first introduced by Rep. Greg Steube (R-Florida) in 2020. And now we are ready to endorse another bill — one we believe has a real shot at being the bill Republicans ultimately pass out of the House in 2023.
INTRODUCING: The HOME RUN Act
Republican Study Committee (RSC) Chairman Jim Banks (R-Indiana), along with Rep. Steube, are beginning to circulate a new Section 230 bill called the Hostile Online Monopolies Evade Responsibility Until Now (HOME RUN) Act.
(Yeah, sorry, I couldn’t resist.)
The HOME RUN Act is a powerful bill with several key provisions. First and foremost, it implements “common carrier” rules for technology companies with platforms that are both open to the public and have more than 100 million worldwide monthly active users. This is a fairly novel approach to Section 230 reform, but it makes a lot of sense — common carrier laws have a long history in this country, and they already impact a number of industries and services. Given Big Tech’s rampant and invidious discrimination against various political and religious groups, it’s probably necessary to add large online platforms to the list.
Under the HOME RUN Act, Big Tech companies would be required to provide access to their platform to anyone upon request and in compliance with reasonable terms of service. They would not be allowed to discriminate against users based on viewpoint, identity, class, or political, religious, or geographic affiliation. And they would be banned from advantaging one of these groups over another. The bill carves out an exception for when these actions are taken against a business competitor or when a user poses a threat of using the services for violent or other unlawful purposes, which would appear to include distributing obscene material to minors. Common carrier technology companies would also be required to publicly release their content moderation policies and make them readily available to users.
As a matter of enforcement of these common carrier rules, the HOME RUN Act embraces the private right of action, an enforcement mechanism that many people are saying is the future of Republican policymaking! In addition to injunctive relief, a plaintiff who was wrongly discriminated against by a Big Tech company would be eligible for an award of actual damages as determined by a court, or a minimum of $500 per violation and $1,500 per “willful and knowing” violation.
The HOME RUN Act implements an even stronger First Amendment standard for online platforms that are deemed by a court to be dominant in their market. (The bill gives the Federal Trade Commission and the Department of Justice a role in certifying market dominance, but this certification would be admissible to a court proceeding, not binding.) These platforms would lose their Section 230 immunity from civil liability entirely if they made content moderation decisions that violate First Amendment principles. In other words, if a market dominant company like Facebook decided to remove lawful content that would be constitutionally protected on a public sidewalk, they could potentially face legal action.
And again, to enforce this standard, the HOME RUN Act includes a private right of action — this time with significantly greater damages. A plaintiff would be eligible for a minimum of $500,000 per violation, or $1.5 million per “willful and knowing” violation.
There will be a lot of talk about the HOME RUN Act in the months ahead. Is this the bill that passes the House in 2023? Will Republican leadership embrace it? That remains to be seen. But it is no small thing that Rep. Banks is the one leading this bill. Banks is widely respected by his colleagues. He chairs the Republican Study Committee, an influential conservative caucus that boasts more than 150 members. He has the ear of Kevin McCarthy, while also maintaining the respect of the Freedom Caucus. This is the type of Member you want leading a bill like this.
I think, at this point, we all understand what time it is. We’ve spent several years introducing messaging bills that don’t go anywhere. Now it’s time to coalesce. Republicans need to get behind one bill and assure the base that they will pass it into law next year. At American Principles Project, we are certainly rooting for the HOME RUN Act to be that bill.
Background: I spoke with Rep. Banks about Big Tech issues, including antitrust, on his podcast in December. Take a listen:
Trump did violate twatter's terms of service long before they banned him. The fact that they took so long to ban him is proof that they censor based on politics and optics, not violation of their own rules.
I do think "reasonable" terms of service would exclude Trump based on certain posts he has made in the past. The requirement to reinstate him is in conflict with the law you support.