The growing tenor on the right is that Big Tech needs to be held accountable for its censorship of conservative and religious viewpoints. Censorship is not the only issue. Conservatives are increasingly recognizing other harms caused by Big Tech, including our children’s declining mental health, the violent crimes of sex trafficking and online child exploitation, and barriers to free-market competition.
But while there is an increasing consensus that there is a problem with Big Tech, there exists a diversity of viewpoints on the right about the exact nature of these problems and thus how best to address them. Are the problems really that bad? Are there any effective solutions? Can we trust the government to not just make things worse?
Last Tuesday, the Ethics and Public Policy Center hosted a Big Tech Symposium of conservative lawmakers and experts to discuss these questions and debate possible policy solutions. Remarks from Sens. Bill Hagerty (R-TN), Josh Hawley (R-MO), Mike Lee (R-UT), Marco Rubio (R-FL), and Rep. Ken Buck (R-CO) alongside other discussions have helped to confirm and illuminate three key policy areas for conservatives as the path forward in countering Big Tech’s power: Section 230 reform, antitrust law, and common carrier law.
Making Sense of Section 230
Section 230 is often invoked as the law to blame for Big Tech’s speech controls, or often looked to as a silver bullet or panacea solution to solving censorship by social media platforms. However, an important theme is emerging that amending or repealing Section 230 is not necessarily the solution.
According to Josh Hammer, counsel at the Internet Accountability Project, conservatives should not look to Section 230 reform as the silver bullet to all our Big Tech woes since it is a rather narrow legal provision and there are other broader policy solutions to address them. Furthermore, the law is not per se the real issue, but the overly broad interpretation it’s been given by our courts, particularly due to the precedent set by the Zeran case.
In his opinion in the Malwarebytes case, Justice Clarence Thomas helpfully delineates the ways the Supreme Court in Zeran expanded Section 230’s immunities beyond the original intent of the law. While many legislative reforms to Section 230 are being debated, a solution that may have been overlooked is that the federal court system can right Section 230 by reinterpreting and clarifying the original meaning of the statute, particularly if the right case makes its way to the Supreme Court.
Just last Friday, there was a ruling from the Texas Supreme Court holding that Facebook can be held liable for sex trafficking recruitment that occurs on its platform. This is an encouraging step in the right direction. If that ruling is appealed, it could be the right case for SCOTUS to take on and overturn the Zeran precedent.
While waiting on the courts, another option is a targeted legislative solution, like Rubio’s recent DISCOURSE Act that seeks to clarify language in Section 230 and limit its immunity protections to restore the statute to its original intent.
How to Reinforce Antitrust Law
The second area of recent conservative attention is antitrust law. The strong concern over Big Tech’s antitrust violations and abuses is growing on the left as well. The consensus is that the current antitrust enforcement in digital markets has been too hands-off and pro-defendant, and a more interventionist approach to antitrust enforcement is needed, at both the federal and state levels.
Recent legislative proposals on the Hill, like Lee’s TEAM Act and the six antitrust bills advanced out of the House Judiciary Committee last week, focus on strengthening antitrust enforcement. These proposals would update antitrust law to shift the burden of proof to the defendants, to have to prove their acquisitions are lawful, for example, and prohibiting dominant companies from advantaging their own products or services or disadvantaging those of their competitors in downstream markets.
Most on the right, however, do not seem not quite ready to go so far as wholly embracing Hawley’s “big is bad” approach to break up Big Tech and abandon the traditional consumer welfare standard of antitrust. But there is recognition that the consumer welfare standard needs to be improved in its application in these “zero-price markets” in the way harms to consumers are measured. Professor John Newman from the University of Miami School of Law has suggested that antitrust enforcers could look for “monopoly overcharges” in the form of a consumer’s attention rather than the traditional metric of price, as one possible solution for updating the consumer welfare standard’s application to Big Tech.
The Common Carrier Solution
Lastly, common carrier law has been receiving a lot of attention as perhaps the best solution to addressing Big Tech’s censorship, particularly in light of Justice Thomas’s recent concurring opinion that lays out how such a framework could be applied to social media companies. Digital platforms now resemble other traditional common carriers, giving individuals and the government the ability to communicate with everyone else, and their dominant market positions further demonstrate that they operate as common carriers. The growing consensus on the right, then, is that these companies meet the legal justifications for imposing common carrier non-discrimination requirements on them so they are obligated to serve all comers.
Professor Philip Hamburger of Columbia Law School helpfully points out that these companies are actually already common carriers because of their Section 230 immunity protections. Traditionally, common carriers receive regulatory deals, where the government offers them incentives or protections and then imposes corresponding requirements, to ensure the provision of the public good to everyone. Hamburger believes, “the problem is not that Section 230 doesn’t treat [social media platforms] as common carriers but that it only does so partly, without imposing the corresponding duty to not discriminate. The statute secures them in their common carrier privileges without corresponding responsibilities.”
Non-discrimination requirements prohibiting platforms from discriminating against certain users on the basis of viewpoint is the necessary “stick” needed to the “carrot” of Section 230 immunities they already have. Using the vehicle of common carrier law may be the most feasible and targeted option for countering Big Tech’s censorship in the near future.
Overall, these three policy areas of increasing conservative attention provide a helpful framework for moving forward in the battle against Big Tech and their harms. However, there are still those on the right who are more skeptical of any, or all, of these approaches. We must convince them otherwise and forge the consensus necessary to advance targeted policy solutions to these problems.
Conservatives need to get over the misguided belief that private businesses can do whatever they want. That isn’t true. All of our liberties have limits. It is time our government imposes proper limits on Big Tech’s liberties in order to realign Silicon Valley’s incentives with the best interests of all Americans, for the sake of the common good.