What Should a Republican-Led Section 230 Reform Look Like?

Proposing a series of litmus tests and must-have provisions

Over the weekend, Minority Leader Kevin McCarthy announced a new framework for reining in Big Tech. There’s a lot to take away from the document, but importantly it represents the most significant commitment to date from Republican leadership to substantively tackle online censorship.

Then on Tuesday, McCarthy announced a new task force to explore policy solutions related to “Big Tech Censorship and Data.” The task force is headed up by Cathy McMorris Rodgers (WA-05) and includes 15 other Republican Members of Congress, including:

• Buddy Carter (GA-01)

• Bob Latta (OH-05)

• Gus Bilirakis (FL-12)

• Kelly Armstrong (ND)

• Cliff Bentz (OR-02)

• Mike Johnson (LA-04)

• Dan Bishop (NC-09)

• Michael Cloud (TX-27)

• Jake LaTurner (KS-02)

• Ben Cline (VA-06)

• Bill Huizenga (MI-02)

• Russ Fulcher (ID-01)

• Jay Obernolte (CA-08)

• Madison Cawthorn (NC-11)

• Claudia Tenney (NY-22)

These are exciting announcements. House Republicans appear to be moving beyond rhetoric and are now coming together to focus on advancing specific policies — ideally with the support of the entire Republican caucus. In light of this, my organization provided Hill staff with a memo on Section 230 reform this week, authored by myself and Craig Parshall, APP’s senior advisor on legal policy and civil liberty. I’ve included much of the content of that memo below.

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American Principles Project has worked with Congress to fight against Big Tech censorship since early 2019. We prioritized this issue because we presumed that the Silicon Valley censors would eventually come for conservative groups like us, which they did last fall while our super PAC was engaged in a $4 million digital advertising campaign in key swing states. Shortly after the election, we filed a complaint against Facebook, Inc. with the Federal Election Commission, which you can read here.

While there are plenty of ways to combat Big Tech censorship, including antitrust enforcement, we have focused mostly on Section 230 reform. Last June, we released a policy blueprint: Protecting Free Speech and Defending Kids: A Proposal to Amend Section 230. And in October, we endorsed the CASE-IT Act (H.R. 285), which was reintroduced in the 117th Congress by Rep. Greg Steube (R-Fla.). You can read our vote recommendation here. In our view, the CASE-IT Act is the best legislation introduced to date to push back against Big Tech censorship.

It is important to note that some Section 230 reform bills are objectively better than others. 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. We propose a series of litmus tests to determine whether a particular amendment to Section 230 is adequate:

• 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?

If the answer to any of these questions is no, then the bill should not be considered.

Below is a more detailed look at some of the most important provisions to include in any Section 230 reform proposal, all of which are present in H.R. 285.

A First Amendment Standard for Content Moderation

Section 230 has largely been interpreted by lower courts as a carte blanche justification for platforms to remove any content at any time for any reason. As Justice Clarence Thomas stated after the Supreme Court denied writ in MalwareBytes v. Enigma Software last year, “Courts have long emphasized nontextual arguments when interpreting §230, leaving questionable precedent in their wake… [while imposing] no limits on an Internet company’s discretion to take down material.”

As Big Tech platforms increasingly function as an ideological cartel, barring any user-generated wrongthink deemed by an out-of-touch technocratic elite to be “misinformation” or “dangerous,” it is clear we must reexamine the federal government’s relationship with such platforms. As it currently stands via existing statute, Congress grants these companies a multi-billion dollar subsidy in the form of legal immunity from civil liability for the content posted on their platforms. We believe this immunity should be conditioned on these platforms adhering to a First Amendment standard for content moderation.

Under this standard, market dominant Big Tech platforms would lose their Section 230 protections if they fail to adhere to policies and practices reasonably consistent with the requirements of the First Amendment that apply to state actors, regardless of whether they are state actors or not. Additionally, these platforms should face a private right of action by users whose content was wrongfully censored. No longer should these platforms engaging in blatant censorship get to enjoy a special benefit from the United States government, which prides itself on promoting free speech and free expression.

As part of any Section 230 reform legislation that adheres to such a standard, or desires similar ends, American Principles Project additionally recommends the inclusion of three key provisions:

1. A Test for Market Dominance. While some have suggested legislative changes that would apply across the board to all platforms, and others have suggested repealing Section 230 entirely, we believe these proposals could potentially cause great harm to “Small Tech” innovators, market disruptors, and individual users who currently enjoy Section 230 protections. In a theoretical landscape where Internet start-ups were left legally vulnerable, it would be easy to imagine Big Tech flexing its financial muscle and seeking to bankrupt its competitors with nuisance lawsuits. The goal of any policy change to Section 230 should be to incentivize changed behavior from market-dominant platforms that effectively behave as the digital public square due to their considerable size and influence.
   

2. A Strong Enforcement Mechanism. Many Section 230 reform proposals rely on government bureaucracy for enforcement, which could pose a problem under the wrong administration. Others fail to employ any sort of enforcement mechanism at all. We believe it is necessary to create a private right of action that would grant users the right to sue when they have had their content censored by Big Tech platforms when that content would have been otherwise protected under the First Amendment in the public square. These market dominant companies would have a choice: swallow their pride and create content moderation policies that reasonably conform to First Amendment values, thereby keeping their Section 230 immunity, or continue their censorship hubris, lose their Section 230 immunity, and face a new private right of action by users they wrongfully censor.
   

3. Protections for Kids from Predation and Illicit Content. No one — user or platform — should enjoy any sort of government-granted immunity when they are sexually exploiting children or facilitating the sexual exploitation of children. That clearly deviates from the intent of Congress in enacting Section 230, which was first passed as part of an anti-pornography bill. We should create exceptions to Section 230 immunity for participating in illegal conduct, knowingly permitting or facilitating contact by an adult to a child for sexual purposes, and knowingly permitting or facilitating the distribution of content, readily accessible to children, that is indecent, obscene, or harmful to minors.

Thanks to the efforts of so many bold conservative leaders in the House and the Senate, including Leader McCarthy, Section 230 reform has gone mainstream. While it is unlikely that anything will pass in the 117th Congress, Republicans can use this opportunity in the minority to coalesce around one or two proposals and finally pass legislation out of Congress after they take back the House and Senate in 2022.