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It’s Time For Congress To Treat Twitter As A Publisher


After two days of public outcry, Twitter has reinstated the account of conservative commentator Jesse Kelly. Contradicting their initial message to Kelly, which notified him that his account had been “permanently suspended” and “[would] not be restored,” a Twitter spokesperson stated on Tuesday that Kelly’s account had instead been “temporarily suspended for violating the Twitter rules.” Precisely which rules Kelly violated were not specified.

Given the opacity of the process, we can only speculate on what caused Twitter to reverse course, but a good bet would be the threat of governmental reprisal hinted at by tweets from Sen. Ben Sasse and Senator-elect Josh Hawley.

While Sasse merely commented that “The trend of de-platforming and shutting down speech is a bad precedent for our free speech society,” Hawley was more explicit, writing, “The new Congress needs to investigate…Twitter is exempt from liability as a ‘publisher’ because it is allegedly ‘a forum for a true diversity of political discourse.’ That does not appear to be accurate.”

Hawley was referencing Section 230 of the Communications Decency Act, which states, among other things, that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” In essence, Section 230 exempts online platforms from legal liability for the content their users post.

Section 230 also notes the logic behind this exemption, listing among its findings that, “The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.”

Platforms like Twitter and Facebook are treated as distinct from publishers in large part because they refrain from discriminating based on ideology. The liability exemption exists so they may continue to function as high-tech public squares. Without Section 230, these platforms could be sued over every offensive tweet or status update, potentially forcing them to restructure their business models from the ground up. Twitter CEO Jack Dorsey is right to fear Hawley’s mention of it.

If the reinstatement of Kelly’s account is an olive branch, it is one that legislators should toss aside. As welcome as it is, Kelly’s unbanning does nothing to change the fact that Twitter’s terms of service now prohibit the assertion of basic biology.

It also does nothing to change the fact that those same terms of service are arbitrarily applied so that leftists like Louis Farrakhan and Sarah Jeong can spread their hate unchecked. And it does nothing to change the fact that Dorsey is willing to lie to Congress about his company’s actions. No, it’s time for Congress to formally recognize that which is already self-evident: Twitter is a publisher, and must be legally liable as such.

This course of action avoids the danger of unintended consequences inherent to more radical proposals like an “Internet Bill of Rights.” It simply acknowledges a widely known fact—that Twitter engages in ideological discrimination—and applies the law already on the books.

Twitter could respond in one of two ways. It could take meaningful steps to enforce an ideologically neutral and equally applied code of conduct, and thus regain its Section 230 protections. Or it could embrace its role as publisher and become like so many other online journals and newspapers, thus opening up the market for a new and genuinely neutral company to fill its niche.

Either way, we would be rid of the absurd fiction that a website that regularly bans conservatives without cause, turns a blind eye to hatemongers with the “correct” opinions, and writes leftist ideology into its terms of service is anything other than a publisher. Perhaps most importantly of all, making an example of Twitter would send a warning to other, larger tech companies that they can and will be held accountable for their actions.

Congressional hearings and President Trump tweets have proven insufficient to deter Twitter from its commitment to censoring conservative voices. It’s time for real action. Congress must recognize Twitter as a publisher.