Rising political star Sen. Josh Hawley (R–Mo.) recently proposed a bill intended to combat Big Tech companies censoring conservative content. According to the bill, a social media company that “proportionately restricts or promotes access to, or the availability of, information from a political party, political candidate, or political viewpoint” will lose its protection as a platform become liable for their content.
The bill comes at a time YouTube, Pinterest, and other large platforms have actively suppressed popular conservative voices by blacklisting them on search algorithms, demonetizing their videos, or outright banning them. If Hawley’s bill is passed, content creators could appeal to the Federal Trade Commission (FTC) to prove that they were unfairly punished for their political or religious views. In response, the FTC would strip that website of its “platform” status, treat it as a publisher, and hold it accountable for every libelous, slanderous, obscene, and predatory content, including advertisements and comments, that appear on its site—as it does for any newspaper or magazine.
National Review writer David French has criticized the bill for attempting to regulate free speech. He argues that this invites a dangerous level of government involvement in public discourse. Subjecting social media companies to government scrutiny may sound appealing with a Republican president in power and a predominantly Republican Senate, but this could backfire if Democrats take control: “Will a Kamala Harris administration decide that disproportionate conservative success violates political neutrality?”
Bad Examples Abound
Besides taking a rather Pollyannaish view on conservative success on social media—never bothering to mention the blatant partisan censorship of conservative voices like Steven Crowder, Prager University, or Live Action—this argument from French and those of other like-minded critics rests on two counterexamples where government cannot regulate speech without violating the First Amendment: a controlled forum like a college classroom, and a public utility like a telephone service.
However, these two examples do not have any bearing on what is meant by free speech. In the case of regulating a public utility, this does not involve actual speech. Speech, in the First Amendment sense, consists of arguments made to a public audience. A telephone service is a means of communication, not a platform for facilitating speech. Therefore, the federal government cannot demand a company like AT&T refuse service to pathological liars or criminals because they perpetuate harmful speech.
Furthermore, if AT&T executives did start to do this, on the grounds that they work for a private company and can do what they want, customers could rightly charge them with discrimination (violating the 14th Amendment). They must provide phone service to all who agree to pay them, not just those who meet their speech guidelines—again, because their service does not pertain to speech, but basic communication, a utility.
In the case of a college lecture hall, the speech in question is not actually free. The professor can make his arguments and say whatever the school permits him to say. He also sets the rules for what students can say. If Dr. Kevin Sorbo tells his students that God doesn’t exist, as he does in the Pure Flix movie “God’s Not Dead,” his students are not free to debate him unless he allows it—which he foolishly does, much to his demise. Nevertheless, they do have the right to free speech outside his class (unless they attend Harvard University) and can complain about their atheist professor all they like.
This is different from students who request government action when they feel their free speech rights are somehow violated because a professor has an opinion that they dislike. Hawley’s bill would not require the fictional Dr. Kevin Sorbo or the real Dr. Fang Zhou to change their views or speech policies to uphold political neutrality in their classroom. It only applies to large social media companies and is meant to prevent silencing any particular view, conservative or progressive.
It’s Naive to Think Big Tech Companies Will Die Out
Given that these social media platforms have billions of users altogether, and will simply buy up any worthy competitor if it stumbles on a new idea (which is the ongoing plotline of the television series “Silicon Valley”), it is misguided to assume that they will pass away like the social media companies of yesteryear (Myspace, Friendster, etc.). The Big Tech platforms are less like a few popular channels on television and more like the whole cable and basic television package. The truth is that they won’t need to change; conservatives who try to create content on their sites will.
Without any laws to check them, Big Tech companies are removing conservative voices and clearing the way for the Democratic narrative that Trump is terrible and more government can save America. Heard often enough, this narrative will convince Americans who have no way of knowing better to vote for Democrats. And it is not a stretch to assume that the first order of business for any Democratic president will be to impose speech laws that suppress conservative ideas or grant greater authority to the Big Tech thought police.
In this, French is right to ask what a Harris administration would do to free speech if given the chance, but wrong to conclude that she would exploit Hawley’s law to do it. She doesn’t need to. Speaking for most Democrats, House Speaker Nancy Pelosi opposes taking away social media’s legal protection (Section 230), considering it a “gift.” She recognizes that Democrat politicians will continue to benefit from the bias dominating all media and only stand to lose if conservatives compete on a level playing field.
It is nonetheless worth noting that even with numerous obstacles put in place, conservatives still dominate the internet because most Americans recognize that they have the better argument and discuss more relevant issues. By contrast, leftist publications depend on skewed narratives and bad arguments and tend to focus on tired topics like the Mueller report, Trump’s tax returns, and Joe Biden.
When given the chance, viewers will watch the watch Crowder over Vox’s Carlos Maza because Crowder is funnier, smarter, and doesn’t rely on people’s sympathy for his success. Of course, if Crowder stops producing his show because YouTube demonetizes his videos, viewers will not have a choice anymore.
In light of this fact, it is probably more accurate to frame the issue of regulating social media as more a matter of a free market than one of free speech, although one depends on the other. Many people on the left want to eliminate competition online and stop losing to conservative content creators. Allegations of hate and radicalization are merely a pretext to this.
In protecting free speech, Hawley’s bill would restore a fair competition of ideas. If it leads to conservatives dominating and winning (and it would) in online media, the left can finally start making a case of their own and stop trying to shut down the debate. Such a result would allow Americans on both sides of the spectrum to benefit not only from better content, but it would also give them a real chance to judge matters for themselves.