Goodbye Section 230, Hello Liberty
By Senator Bill Hagerty
April 26, 2021
For too long Americans have watched Big Tech trample on the principles of the First Amendment—free speech, freedom of thought and belief, free assembly and the open exchange of ideas. As more information is filtered through online platforms, the First Amendment is becoming a dead letter. That’s why I’m taking action to hold these corporations accountable.
Today, I’m introducing the 21st Century Foundation for the Right to Express and Engage in Speech Act (or the 21st Century FREE Speech Act), which would restore the Bill of Rights—rather than the whims of big companies—as the guide for what Americans can say or hear in today’s public square.
The modern public square is dominated by ubiquitous platforms facing little meaningful competition. Instead of being accountable to consumers or voters, the companies that dominate communication today use opaque, inconsistent practices to control the information Americans get to see and discuss. As Justice Clarence Thomas noted in a recent Supreme Court opinion, common carriers—such as trains or phone networks, which are essential to everyday goings-on, connecting people and information—have historically been subject “to special regulations, including a general requirement to serve all comers” without discrimination. The same logic should apply today to Big Tech.
Unfortunately, our laws haven’t kept pace with this technological reality. The statutes governing free speech and the free exchange of ideas online haven’t been updated in a quarter-century. Since it was passed in 1996, Section 230 has been stretched from its original intent—the promotion of the free exchange of ideas online—into a license for companies like Facebook and Twitter to censor.
In recent months, these platforms have effectively smothered newspaper stories that they found inconvenient for their loudest users’ preferred candidates. Big Tech companies have silenced mainstream American political figures, while leaving up Iran’s Supreme Leader Ali Khamenei’s account, even as he tweets hateful things, including calls to “eliminate Israel” and discussions of how to do so. These platforms have censored and editorialized with blatant political bias—writing progressive ideology into their content policies or scrubbing dissent against Covid lockdowns off their sites. Moderate and conservative viral content is suppressed. Twitter blocked the account of the New York Post over its reporting on Hunter Biden, while Amazon removed from its streaming service an acclaimed documentary on Justice Thomas during Black History Month. Implicit in these censorship practices is an apparent belief that Big Tech has the right to shape what Americans can learn and believe—a totalitarian concept that runs contrary to U.S. values.
My bill would (1) abolish Section 230, (2) treat Big Tech—defined as any interactive computer service platform with more than 100 million active monthly users world-wide—like a common carrier that must provide reasonable, nondiscriminatory access to all consumers, and (3) prohibit political censorship by Big Tech.
In addition to not discriminating against political opinions their employees personally dislike, social-media companies should be required to provide basic consumer transparency regarding their products, given that many Americans rely on them for news and information. The 21st Century FREE Speech Act would require platforms to disclose their content management and moderation practices to users, so that consumers can understand and better manage the information they receive.
The 21st Century FREE Speech Act would abolish Section 230 in favor of a liability protection framework that marries that section’s original intent with the practical implications of the enormous technological change that has ensued over the past 25 years. Liability protection would remain in place for third-party speech and family-friendly moderation of specifically defined obscene or lewd content, without providing limitless special protection for platforms’ own speech and viewpoint censorship. This legislation provides the liability protection necessary to spur continued innovation, without giving companies carte blanche to censor speech on political, religious, or other grounds.
Ultimately, the 21st Century FREE Speech Act is about promoting free speech, thought and exchange of ideas. It’s about trusting Americans, not massive companies, to determine what information to consume, believe and share. I think Americans are smart enough to figure that out on their own.
As Justice Oliver Wendell Holmes Jr. , put it in a 1919 Supreme Court opinion concerning the censorship issue of his day, the prosecution of printers of an anti-U.S. leaflet during World War I: “The theory of our Constitution” is that “the ultimate good desired is better reached by free trade in ideas” and “the best test of truth is the power of the thought to get itself accepted in the competition of the market.”
This freedom to think, discuss and determine one’s own beliefs is the foundation of American liberty and opportunity. Washington can’t allow Twitter and Facebook to eliminate these freedoms. We owe it to our children and grandchildren to ensure they are preserved.
Mr. Hagerty, a Republican, is a U.S. senator from Tennessee.