Willliam L. Kovacs

June 15, 2021

Critics of section 230 of the Communications Decency Act (“sec. 230”) have discussed reforming it for a decade. Section 230 has two primary provisions. The first exempts internet providers from civil liability for publishing any information from a third-party content provider that is objectionable. The second provision exempts Big Tech from liability when it takes voluntary, good faith actions, to restrict objectionable materials or provides the technical means to restrict them.

Unfortunately, like most politicians, sec. 230 opponents talk and talk. Watch and listen to Senators Cruz and Hawley on cable news. While their talk is full of sound and fury, it really signifies the proverbial nothing. Other conservatives introduce antitrust legislation to break up Big Tech, an endless effort for Congress and the courts. A few opponents just want to repeal sec 230, an incomprehensive statute designed to protect children from online predators but used to protect Big Tech.

Republicans controlled Congress and the White House until 2021 and did nothing to address sec. 230. Now, however, with significant help from Big Tech, especially with campaign contributions and the selective use of algorisms, Democrats gained control of Congress and the White House in 2021. As a result, Democrats will protect Big Tech, as long as it bans conservatives from its platforms. Being free of liability has allowed Big Tech to grow in size and wealth while achieving regulatory control over social media. Big Tech is so powerful, it even banned a sitting President from Facebook and Twitter. In addition, Google and Apple blocked Parler’s App from their stores, and Amazon Web Services suspended Parler’s access to its cloud network, thereby shutting it down for months.

Unless conservatives take innovative, concerted action outside of Congress, Big Tech will remain free to ban conservative voices from social media as long as Democrats hold the White House. It is now time for conservatives to take action or get off the pot.

Fortunately, there are many actions that can be taken with the drama of an inept Congress.

Several times on these pages I have argued that sec. 230 is an unconstitutional delegation of power to private sector companies to regulate other private sector companies. Congress has no constitutional power to authorize private parties to deprive, even unpopular citizens, of their constitutional rights. Moreover, when private parties control the new public square, they function as a state actor and must provide constitutional rights for all.

These principles are set out in Carter v. Carter Coal Company, (1935) and  Marsh v. Alabama, (1946). Since the First Amendment severely limits governments’ power to regulate political speech, the government cannot grant private parties, functioning as a government, more power than it has. If Congress desires to impose speech limitations on the Internet, it must do so directly, by government regulation that protects the constitutional rights of citizens.

Opponents of sec. 230 can take several actions to achieve reform.

Action 1: file a lawsuit asserting sec. 230 is an unconstitutional delegation of congressional authority. Perhaps the newly formed America First Legal will take on the issue. Free speech is just as important as illegal immigration.

Action 2: Join Florida in its attempt to restrain the power of Big Tech. Governor DeSantis (R-FL) proposed and had passed a law prohibiting Big Tech from de-platforming the speech of political candidates and imposed fines on violators as high as $250,000 a day. Florida also allows citizens to sue companies violating the law. However, the penalties will not impact Big Tech’s actions. A few weeks ago, Google, with a market capitalization over $1 trillion, settled an antitrust case with French authorities for $270 million, a fraction of a percent of its worth. These individual attempts to control the power of Big Tech will be of limited success against the five largest tech giants having a value of $ 5.2 trillion. The state of Florida’s budget is $101.5 billion. The 2021 combined budget for all fifty states is $2.1trillion. Additionally, Big Tech is challenging the constitutionality of Florida’s law.

Action 3: to break Big Tech’s stranglehold on free speech in social media, conservative groups could craft and implement an advocacy plan to restrict the application of sec. 230 without passing a new law. The model for this effort is the radical Left’s brilliant strategy to regulate climate change without passing any new law.

To seriously challenge Big Tech, conservatives will need to develop and implement a coordinated and aggressive strategy that includes legislators, governors, attorneys general, interest groups, legal centers, and citizens who want freedom of speech in the public square.

A similar strategy worked for the radical Left when it developed, coordinated, and implemented its plan to impose climate change regulation on the U.S. without Congress passing a climate change law. The strategy’s components:

1. Using Administrative Procedure Act laws, file petitions with federal and state agencies to initiate rulemaking to change regulatory policy.
2. If the petitions are denied, a coalition of states, cities, and non-profit organizations will appeal the denial to the courts.
3. Use states as lead petitioners in court challenges to secure special standing recognized by the U.S. Supreme Court.
4. Organize states with similar policy views into regional working units, similar to Compacts, designed to regulate activities of regional concern. For example, nine states in the Northeast and Mid-Atlantic, and three west coast states, formed regional compacts to address climate concerns.
5. Encourage state Attorneys General, and coalitions to sue on innovative legal theories. One example would be Big Tech’s potential liability for flagging posts as “misinformation,” which were later found to be credible, and Big Tech retracted its label. Specifically, Facebook’s recent retraction of its ban on posts concerning coronavirus leaks from a Chinese lab. Under section 230(f)(3), when Facebook labels a third-party’s content “misinformation,” it is acting as an authoritative speaker on its platform by producing, in whole or in part, new content with the third party. Since section 230 protects platforms, not speakers, Facebook’s speech no longer has immunity from civil liability, and facts supporting its new content may be subject to civil discovery.
6. Environmental groups brought hundreds of NEPA cases to deny permits to oil and gas operations. NEPA lawsuits could also be brought to block permits for Big Tech’s massive energy-consuming data centers that make the Internet viable, just as permits allow big energy to get its product to market.
7. Environmental organizations and state attorneys general brought over One Thousand lawsuits against the government and private parties in the U.S. to impose climate regulation. A similar approach could be launched against Big Tech each time it censors “objectionable” content.
8. Perhaps s a class action suit against Big Tech is appropriate by those whose comments on the lab leak were flagged as “misinformation.”

If conservatives are serious about reforming section 230, they have all the tools for success: 27 Republican governors, 25 Republican Attorneys General, and certainly the numerous groups believing in free speech. Recently, twenty-five red states independently opted out of accepting extra federal unemployment benefits. These actions demonstrate a significant base of potential support. The key to success rests in the conservative’s willingness to plan, organize and implement like the Left.

Message to conservatives: If sec. 230 is truly the concern you make it to be; it’s time for the talking to stop and the action to start.