The First Amendment Bars Regulating Political Neutrality, Even Via Section 230

from the the-1st-amendment-and-section-230 dept

At the end of May, President Trump issued an Executive Order demanding action against social media sites for “censoring” conservatives. His Department of Justice made a more specific proposal in mid-June. Clearly coordinating with the White House, Sen. Josh Hawley introduced a bill that same morning, making clear that his “Limiting Section 230 Immunity to Good Samaritans Act” is essentially the administration’s bill — as called for in the May Executive Order. The administration is expected to make its next move next week: having NTIA (an executive agency controlled by Trump loyalists and advised by a former law professor intent on cracking down on tech companies) ask the FCC to make rules reinterpreting Section 230 to do essentially the same thing as the Hawley bill. These two approaches, both stemming from the Executive Order, are unconstitutional for essentially the same reasons: they would put a gun to the head of the largest social media websites, forcing them to give up editorial control over their services if they want to stay in business.

The First Amendment would not allow Congress to directly require websites to be politically “neutral” or “fair”: the Supreme Court has recognized that the First Amendment protects the editorial discretion of websites no less than newspapers. Both have the same right to decide what content they want to carry; whether that content is created by third parties is immaterial. Hawley’s bill attempts to lawyer over the constitutional problem, using an intentionally convoluted process to conceal the bill’s coercive nature and to present himself as a champion of “free speech,” while actually proposing to empower the government to censor online content as never before.

Instead of directly meddling with how websites moderate content, Hawley’s bill relies on two legal sleights of hand. The first involves Section 230 of the Communications Decency Act of 1996. That law made today’s Internet possible — not only social media but all websites and services that host user content — by protecting them from most civil liability (and state criminal prosecution) for content created by third parties. Given the scale of user-generated content — with every comment, post, photo and video potentially resulting in a lawsuit — websites simply could not function if Section 230 did not immunize them not just from ultimate liability but from the litigation grindstone itself. Hawley knows that all sites that host user content depend on Section 230, so he’s carefully crafted a bill that turns that dependence against them — to do something the First Amendment clearly forbids: to force them to cede editorial control over their services. (Here’s a redline showing how Hawley’s bill would amend Section 230.)

Second, Hawley claims that his bill “protects consumers” by holding companies to their promises. In reality, it defines “good faith” so broadly that “edge providers” would face a constant threat of being sued under consumer protection and contract laws for how they exercise their editorial discretion over user content. Given the fines involved ($5,000/user plus attorneys’ fees), a single court decision could bankrupt even the largest tech company.

No one should have any illusion about what Hawley’s bill really does: use state power to advance a political agenda. The bill’s complicated structure merely masks the elaborate ways it violates the First Amendment. Conditioning 230 immunity on opening yourself up to legal liability under consumer protection law is a Rube-Goldberg-esque legal contraption intended to do what the First Amendment clearly forbids: forcing websites to host user-generated content they find objectionable.

How the Hawley Bill Works

Section 230(c)(1) says: “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.” These have been called the The Twenty-Six Words That Created the Internet. When websites and services are sued for third party content they host, Section 230 allows them to cheaply get lawsuits against them thrown out with a motion to dismiss. Consequently, lawsuits are far rarer than they would be in a world without 230. Section 230(c)(1) ensures that those who create content are the ones to be sued. Courts resolve nearly all 230 cases under this provision.

Republicans have insisted angrily that all of Section 230 was intended to depend on a showing of good faith, including political neutrality; however, the plain text of the statute is clear. Only Subsection 230(c)(2)(A) requires such a showing — and the statute’s operative language doesn’t mention neutrality. As Justice Neil Gorsuch recently declared, “When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.” Bostock v. Clayton County, 590 U.S. ___ (2020). By proposing to amend Section 230(c)(1) to require both good faith and neutrality, Trump’s DOJ and Hawley both concede that the President’s Executive Order and other Republican clamoring for immediate legal action are simply wrong about the current state of the law.

The real aim of Hawley’s bill is to force the largest social media services to change how they treat content that serves the “MAGA” political agenda — e.g., not labeling Trump’s tweets, allowing far-right provocateurs to engage in bannable conduct, treating Diamond and Silk or Gateway Pundit as the journalistic equivalents of The New York Times. The bill is almost perfectly tailored to do just that while avoiding damage to smaller, alternative social networks favored by conservative activists for their “anything goes” approach to content moderation.

Hawley’s bill applies only to “edge providers”: websites or services with 30+ million annual unique users, or more than 300 million unique global users, in the past year, and more than $1.5 billion in global revenue. To maintain 230(c)(1) protections, they would have to attest to “good faith” — essentially, political neutrality — in their content moderation practices. Thus, an edge provider has to choose between two litigation risks: If it “voluntarily” exposes itself to suit for the “fairness” of its content moderation, it cedes editorial control to judges and regulators. If it surrenders Section 230 protections, it risks being sued for anything its users say — which may simply make it impossible for them to operate.

Trump’s Executive Order asks the Federal Communications Commission to collapse Section 230’s three distinct immunities into a single immunity dependent on “good faith” — and then define that term broadly to include neutrality and potentially much more. The Hawley bill does roughly the same thing by requiring large “edge providers” to promise “good faith.” Both would change the dynamics of litigation completely: A plaintiff with a facially plausible complaint would (1) prevail on a motion to dismiss, (2) get court-ordered discovery of internal documents and depositions of employees to assess “good faith” (however that term is expanded), and (3) force the company to litigate all the way through a motion for summary judgment. Whether or not the plaintiff ultimately wins, this pre-trial phase of litigation is where the defendant will incur the vast majority of their legal costs — and where plaintiffs force settlements. Multiply those costs of litigation, and settlement, times the millions or billions of pieces of content posted to social media sites every day and you get “death by ten thousand duck-bites.” Fair v. Roommates, 521 F.3d 1157, 1174 (9th Cir. 2008). That’s why Judge Alex Kozinski (a longtime conservative champion once short-listed for the Supreme Court) declared: “section 230 must be interpreted to protect websites not merely from ultimate liability, but from having to fight costly and protracted legal battles.” Id.

Having to prove good faith to resolve litigation would kill most social media websites, which exist to host content by others. Ironically, it’s possible that the best established social media sites with the biggest legal departments might cope; they might even be grateful that Hawley’s bill had made it impossible for new competitors to get off the ground. At the same time, if (c)(1) is no longer an immunity from suit but merely a defense raised only after great expense, websites across the Internet would simply turn off their comments sections.

Today, Section 230 doesn’t define “good faith.” Courts assessing eligibility for the 230(c)(2)(A) immunity have defined the term narrowly. See e.g., BFS Fin. v. My Triggers Co., No. 09CV-14836 (Franklin Cnty. Ct. Com. Pl. Aug. 31, 2011) (allowing antitrust claims); Smith v. Trusted Universal Standards in Elec. Transactions, 2011 WL 900096, at *25–26 (D.N.J. Mar. 15, 2011). Hawley’s bill would add a five-factor definition of “good faith” in a new Subsection 230(c)(3). These factors would give plaintiffs ample room to declare that an edge provider had been politically biased against them. Inevitably, courts would have to analyze the nature of third-party content, comparing content that had been removed with content that had not in order to judge overall patterns.

To maintain 230 protections, an edge provider must also agree to pay up to $5,000 damages to users if it is found to have breached its (compelled) promises of “neutrality.” Three hundred million users times $5,000 is $1.5 trillion dollars, exceeding the entire market cap of Google. The bill also adds attorneys fees, threatening to create a cottage industry of litigation against edge providers. The mere threat of such massive fines will fundamentally change how websites operate — precisely Hawley’s goal.

Perhaps most important is what the bill doesn’t say: unlike Trump’s Order, Hawley’s bill doesn’t directly call on the FTC or state AGs to sue websites for bias. But make no mistake; his bill would weaponize federal and state consumer protection laws to allow politicians to coerce social media into favoring their side of the culture wars. The FTC might hesitate to bring such suits, because of all the constitutional problems discussed below, but multiple Republican attorneys general have already made political hay out of grandstanding against “liberal San Francisco tech giants.” They would surely use Hawley’s bill to harass edge providers, raise money for their campaigns, and run for governor — or Senate.

A New Fairness Doctrine — with Even Greater First Amendment Problems

The Original Fairness Doctrine required broadcasters (1) to “adequately cover issues of public importance” and (2) to ensure that "the various positions taken by responsible groups" were aired, thus mandating the availability of airtime to those seeking to voice an alternative opinion. President Reagan’s FCC abolished these requirements in 1987. When Reagan vetoed Democratic legislation to restore them, he noted that “the FCC found that the doctrine in fact inhibits broadcasters from presenting controversial issues of public importance, and thus defeats its own purpose.”

The Republican Party has steadfastly opposed the Fairness Doctrine for decades. The 2016 Republican platform (re-adopted verbatim for 2020) states: “We likewise call for an end to the so-called Fairness Doctrine, and support free-market approaches to free speech unregulated by government.” Yet now, Hawley and Trump propose a version of the Fairness Doctrine for the Internet that would be more vague, intrusive, and arbitrary than the original.

In Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), the Supreme Court struck down a 1913 state law imposing a version of the Fairness Doctrine on newspapers that required them to grant a “right of reply” to candidates for public office criticized in their pages. The Court acknowledged that there had been a technological “revolution” since the enactment of the First Amendment. The arguments made then about newspapers, as summarized by the Court, are essentially the same arguments conservatives make about digital media:

The result of these vast changes has been to place in a few hands the power to inform the American people and shape public opinion…. The abuses of bias and manipulative reportage are, likewise, said to be the result of the vast accumulations of unreviewable power in the modern media empires. The First Amendment interest of the public in being informed is said to be in peril because the ‘marketplace of ideas’ is today a monopoly controlled by the owners of the market.

Id. at 250. And yet, the court struck down the law as unconstitutional because:

a compulsion to publish that which “‘reason' tells them should not be published" is unconstitutional. A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution and like many other virtues it cannot be legislated.

Id at 256. “Government-enforced right of access inescapably ‘dampens the vigor and limits the variety of public debate.’" Id. at 257. Critically, the Court rejected the intrusion into the editorial discretion “[e]ven if a newspaper would face no additional costs to comply,” because:

A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials — whether fair or unfair — constitute the exercise of editorial control and judgment.

418 U.S. at 258. The Trump/Hawley Fairness Doctrine would impose the very same intrusion upon editorial judgments of edge providers. In addition, determining whether a website has operated “fairly” would be “void for vagueness since no editor could know exactly what words would call the statute into operation.” Id. at 247.

The Supreme Court upheld the Fairness Doctrine for broadcasters in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), but only because the Court denied broadcasters full First Amendment protection: “Although broadcasting is clearly a medium affected by a First Amendment interest, differences in the characteristics of new media justify differences in the First Amendment standards.” The same arguments have been made about the Internet, and the Supreme Court explicitly rejected them.

When the Court struck down Congress’ first attempt to regulate the Internet, the Communications Decency Act (everything except Section 230), it held: “our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.” Reno v. American Civil Liberties Union, 521 U.S. 844, 870 (1997). The Court has since repeatedly reaffirmed this holding. While striking down a state law restricting the purchase of violent video games, Justice Scalia declared: "the basic principles of freedom of speech and the press, like the First Amendment's command, do not vary when a new and different medium for communication appears.” Brown v. Entertainment Merchants Assn., 564 U.S. 786, 790 (2011). In short, Red Lion represented an exception, and even that exception may not survive much longer.

Social Media Aren’t Public Fora, So the First Amendment Protects Them

The President’s Executive Order attempts to sidestep the Supreme Court’s consistent protection of digital speech by claiming that social media are effectively “public fora” and thus that the First Amendment limits, rather than protects, their editorial discretion — as if they were extensions of the government: “It is the policy of the United States that large online platforms, such as Twitter and Facebook, as the critical means of promoting the free flow of speech and ideas today, should not restrict protected speech.” The Order also cites the Supreme Court’s decision that shopping malls were public fora under California’s constitution in Pruneyard Shopping Center v. Robins, 447 U.S. 74, 85-89 (1980).

But Justice Kavanaugh, leading the five conservatives, explicitly rejected such arguments last year: “merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.” Manhattan Community Access Corp. v. Halleck, 139 S. Ct. 1921, 1930 (2019). Pruneyard simply doesn’t apply to social media.

Trump’s Order cites the Supreme Court’s recent decision in Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017) (social media “can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard”), but omits the critical legal detail: it involved a state law restricting the Internet use of convicted sex offenders. Thus Packingham changed nothing: the First Amendment still fully protects, rather than limits, the editorial discretion of website operators under Miami Herald and Reno.

Hawley’s Bill Imposes an Unconstitutional Condition

Hawley’s bill turns on one underlying legal claim more than any other: that Section 230 is a special privilege granted only to large websites, and withholding it does not violate the First Amendment. The factual claim is false: the law applies equally to all websites, protecting newspapers, NationalReview.com, FoxNews.com and every local broadcaster from liability for user comments posted on their website in exactly the same way it protects social media websites for user content. The legal claim is also wrong.

The Supreme Court has clearly barred the government from forcing the surrender of First Amendment rights in order to qualify for a benefit or legal status. In Agency for Int'l Dev. v. All. for Open Soc'y Int'l, Inc., 570 U.S. 205 (2013), the Court said that the government couldn’t condition the receipt of AIDS-related funding on the recipients’ adoption of a policy opposing prostitution (a form of compelled speech). Much earlier, in Speiser v. Randall, 357 U.S. 513, 518 (1958), the Court made it clear that denying a tax exemption to claimants who engage in certain forms of speech effectively penalizes them for that speech — essentially fining them for exercising their First Amendment rights.

Using Section 230 to coerce social media companies into surrendering their First Amendment rights is no different. Consider how clearly the same kind of coercion would violate the First Amendment in other contexts. Pending legislation would immunize businesses that re-open during the pandemic from liability for those who might be infected by COVID-19 on their premises. Suppose the bill included a provision requiring such businesses to be politically neutral in any signage displayed on their stores — such that, if a business put up, or allowed a Black Lives Matter sign, they would have to allow a “right of reply” in the form of a sign from “the other side.” The constitutional problem would be obvious and in no way ameliorated by the “voluntary” nature of the immunity program.

Social Media Companies Can’t Be Forced to Risk Being Associated with Content They Find Objectionable

The case against unconstitutional conditions and public forum status is even clearer for websites than it would be for retailers or shopping malls, for two reasons. First, social media companies are in the speech business, unlike businesses whose storefronts might incidentally post their own speech or host the speech of others. Reno makes clear that websites enjoy the same First Amendment right as newspapers, and “[t]he choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials — whether fair or unfair — constitute the exercise of editorial control and judgment.” Miami Herald, 418 U.S. at 258.

Second, Pruneyard emphasized that shopping malls could “expressly disavow any connection with the message by simply posting signs in the area where the speakers or handbillers stand.” But users will naturally assume speech carried by a social network reflects their decision to carry it — just as Twitter and Facebook have been attacked for not removing President Trump’s tweets or banning him from their services.

Disclaimers may actually be less effective online. Consider the three labels Twitter has applied to President Trump’s tweets (the first two of which provoked the issuance of his Executive Order).

The first example not only fails to clearly “disavow any connection with the message,” it is also ambiguous: it could be interpreted to mean there really is some problem with mail-in ballots.

Similarly, Twitter applied a “(!) Manipulated Media” label to Trump’s tweet of a video purporting to show CNN’s anti-Trump bias. Twitter’s label is once again ambiguous: since Trump’s video claims that CNN had manipulated the original footage, the “manipulated media” claim could be interpreted to refer to either Trump’s video or CNN’s. Although the label links to an “event” page explaining the controversy, the warning only works if users actually click through. It’s far from clear to many users that the label is actually a link that will take them to a page with more information.

Finally, when Trump tweeted, in reference to Black Lives Matter protests, “when the looting starts, the shooting starts,” Twitter did not merely add a label below the tweet. Instead, it hid the tweet behind a disclaimer. Clicking on “view” allows the user to view the original tweet:

And yet Twitter has still been lambasted for not taking the tweet down completely, a decision interpreted by some as an acceptance of the validity of such an extreme position.

Further, disclaimers risk creating increased liability; indeed, they may trigger lawsuits from scorned politicians. For example, labeling (and hiding) Trump’s tweets provoked issuance of the Executive Order. In the end, the only truly effective way for Twitter to disavow Trump’s comments would be to ban him from their platform — precisely what the Hawley bill aims to deter.

In this sense, the Trump/Hawley version of the Fairness Doctrine is hugely more intrusive than the right of reply in the original Fairness Doctrine; it puts edge providers in the doubly unconstitutional position of (a) hosting content they do not want to host and (b) being afraid even to label it as content they find objectionable.

Why the Hawley Bill’s Good Faith Requirement Violates the First Amendment

To maintain 230 immunity, edge providers would be required to promise to moderate content in “good faith” — which the Hawley bill defines very loosely as “honest belief and purpose...fair dealing standards, and…[no] fraudulent intent” — in other words, political neutrality (and more). The bill adds this to Section 230’s list of exceptions: “Nothing in this section shall be construed to impair or limit any claim for breach of contract, promissory estoppel, or breach of a duty of good faith.’’ Thus, an edge provider’s compelled “promises” could be enforced by the Federal Trade Commission, state AGs, or private plaintiffs under various federal and state consumer protection laws and common law contract theories. These enforcement mechanisms raise slightly different legal issues, but they all violate the First Amendment in essentially the same way: state action interfering with edge providers’ exercise of editorial discretion.

Consumer Protection Law Can’t Police “Fairness” Claims

Republicans used to oppose weaponizing consumer protection laws against media companies. In 2004, MoveOn.org and Common Cause asked the FTC to proscribe Fox News’ use of the slogan “Fair and Balanced” as a deceptive trade practice. Republican Chairman Tim Muris responded pithly: “I am not aware of any instance in which the [FTC] has investigated the slogan of a news organization. There is no way to evaluate this petition without evaluating the content of the news at issue. That is a task the First Amendment leaves to the American people, not a government agency.”

Similarly, the Hawley bill would necessarily embroil the FTC, state AGs, and judges in “evaluating the content … at issue.” Media companies aren’t exempt from consumer protection or antitrust laws, but the First Amendment makes suing them for how they exercise their editorial discretion extremely difficult, if not impossible — which is why the FTC has never attempted to police marketing claims about editorial practices the way it polices marketing claims generally.

As Chairman Muris noted, general statements about “fairness” or “neutrality” simply are not verifiable. This is why the Ninth Circuit recently dismissed Prager University’s deceptive marketing claims against YouTube. Despite having over 2.52 million subscribers and more than a billion views, this right-wing producer of “5-minute videos on things ranging from history and economics to science and happiness,” sued YouTube for “unlawfully censoring its educational videos and discriminating against its right to freedom of speech.” Specifically, Dennis Prager alleged that roughly a sixth of the site’s videos had been flagged for YouTube’s Restricted Mode, an opt-in feature that allows parents, schools and libraries to restrict access to potentially sensitive (and is turned on by fewer than 1.5% of YouTube users). The Ninth Circuit ruled:

YouTube's braggadocio about its commitment to free speech constitutes opinions that are not subject to the Lanham Act. Lofty but vague statements like "everyone deserves to have a voice, and that the world is a better place when we listen, share and build community through our stories" or that YouTube believes that "people should be able to speak freely, share opinions, foster open dialogue, and that creative freedom leads to new voices, formats and possibilities" are classic, non-actionable opinions or puffery. See Newcal Indus., Inc. v. Ikon Office Sol., 513 F.3d 1038, 1053 (9th Cir. 2008). Similarly, YouTube's statements that the platform will "help [one] grow," "discover what works best," and "giv[e] [one] tools, insights and best practices" for using YouTube's products are impervious to being "quantifiable," and thus are non-actionable "puffery." Id. The district court correctly dismissed the Lanham Act claim.

Prager Univ. v. Google LLC, 951 F.3d 991, 1000 (9th Cir. 2020). Websites can’t be sued today for making statements that may sound like offering neutrality — contrary to Republican claims that they should be, and Trump’s call for such lawsuits in this Executive Order. The Hawley bill implicitly concedes this point.

But simply forcing edge providers to be more specific in their claims about neutrality will not overcome the ultimate constitutional problem. Puffery includes “claims [which] are either vague or highly subjective.” Sterling Drug, Inc. v. FTC, 741 F.2d 1146, 1150 (9th Cir. 1984) (emphasis added). It would be difficult to imagine a more subjective marketing claim than one about “good faith,” “neutrality” or “fairness.” Ultimately, the reason consumer protection law does not attempt to police marketing claims about neutrality is not their lack of specificity but their subjectivity.

In theory, the FTC might be able to base a deception case on certain very clear, objective claims about editorial practices; that category of deception, however, would be narrow — the use of human moderators to evaluate particular pieces of content or to decide which topics are “trending,” or the application of community standards to elected officials, for example. These deception cases would do little to address the complaints of conservatives, and even such narrow complaints might be unconstitutional.

Consumer Protection Law Can’t Police Non-Commercial Speech

The FTC can police marketing claims for being misleading to the extent they “propose a commercial transaction.” Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York, 447 U.S. 557,561 (1980); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976). Community standards documents do much more than that: they are essentially statements of values, comparable to Christian retailer Hobby Lobby’s statement that the company is committed to “[h]onoring the Lord in all we do by operating the company in a manner consistent with Biblical principles.”

Such statements are non-commercial speech, which is fully protected by the First Amendment under strict scrutiny even when it is misleading. United States v. Alvarez, 567 U.S. 709 (2012). To overcome strict scrutiny, the government must show that the bill is (1) necessary to address a compelling government interest (2) to which the law is narrowly tailored, and (3) that the government uses the least restrictive means possible to address that interest. Reed v. Town of Gilbert, 576 U.S. 155, 163, 171 (2015). In Miami Herald, the court noted that Florida’s interest in “ensuring free and fair elections” was a “concededly important interest,” but had to yield to the “unexceptionable, but nonetheless timeless, sentiment that liberty of the press is in peril as soon as the government tries to compel what is to go into a newspaper." 418 U.S. at 260. The bill also fails on the second two prongs of strict scrutiny,

If the Hawley bill passes, the Trump Administration will undoubtedly argue that edge providers’ community standards are ads for their services. But when speech has commercial aspects that are “inextricably intertwined” with other fully protected speech, that speech is generally fully protected. Riley v. Nat’l Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 783 (1988). For example, corporate statements endorsing Black Lives Matter receive First Amendment protection even when embedded in marketing claims.

Courts are generally reluctant to label content as commercial speech because that denies the speech full First Amendment protection. Although community standards and terms of service may “refer[] to a specific product,” they in no way resemble traditional advertising — two of the factors courts assess in drawing the line between commercial and noncommercial speech. Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 66-67 (1983). The third factor, the profit motive — which Hawley harps on in his public statements — is not dispositive: “If a newspaper's profit motive were determinative, all aspects of its operations—from the selection of news stories to the choice of editorial position—would be subject to regulation if it could be established that they were conducted with a view toward increased sales.” Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 385 (1973) (emphasis added).

Pittsburgh Press makes clear that statements about the way publishers exercise their editorial discretion are fundamentally different from statements about the health benefits of drug products, for example.

Even if a court decided to treat community standards as commercial speech, the government would still face an uphill battle. “The party seeking to uphold a restriction on commercial speech carries the burden of justifying it,” Bolger, 463 U.S. at 71, n. 20, and “must demonstrate that the harms it recites are real, and that its restriction will in fact alleviate them to a material degree.” Edenfield v. Fane, 507 U.S. 763, 771 (1993). Because the government’s interest in regulating commercial speech lies in its misleading or false nature, it would have to show that statements about a website’s editorial practices are misleading. General claims about “fairness,” however, are simply not verifiable.

Why the Government Can’t Compel Disclosures about Editorial Policies

Compelling edge providers to change what they say about their community standards violates the First Amendment even apart from enforcement of such claims. As a condition for maintaining 230 protection, the Hawley bill requires edge providers to (1) “describe any policies … relating to restricting access to or availability of [user-generated] material” and (2) “promise that the edge provider shall … design and operate the provided service in good faith.” The first requirement seems hands-off: it does not directly dictate what an edge provider’s terms of service must say. But this is simply a trick of clever drafting: this requirement does not need to be specific, because the second requirement (“good faith”) will, in practice, govern both. The two inquiries will collapse into one, allowing complaints about both the fairness of content moderation practices as compared to community standards, and the adequacy of those standards.

As a result, companies would (1) make their community standards as opaque or unspecific as possible and (2) minimize transparency about content moderation generally (e.g., avoiding public statements or reporting on content removals). But relying on “good faith” does not solve the compelled speech First Amendment problem.

Suppose that, instead of suing to enforce Fox News’ “Fair and Balanced” slogan in 2004, Congressional Democrats had proposed a bill like Hawley’s: just replace “community standards” with “editorial standards” and apply the bill to cable programming networks over a certain size. It would be obvious that the government cannot compel traditional media companies to “describe any policies … relating to [selection] of [programming] material.”

By contrast, the government may (and does) compel food manufacturers to disclose ingredient lists and nutritional information. The First Amendment permits such mandates because they apply to statements of objective fact, not the disclosure of opinions. This is why the seemingly simple age-based ratings systems for video games and movies have evolved as purely private undertakings. Behind each label is an editorial judgment, an opinion, about how to apply rating criteria. The government can compel neither the rating system overall, nor specific disclosures about the contents of specific films, nor disclosure of the rating methodology. By the same token, it cannot compel websites to disclose their editorial methodologies, whether implemented by humans or algorithms. Brown, 131 S. Ct. at 2740.

The Hawley Bill Is Designed to Chill the Exercise of Editorial Discretion

The Hawley bill proposes four criteria for assessing a website’s “good faith.” The first two concern “selective enforcement,” whether by humans or algorithms. But what purports to be a regulation only of marketing claims would actually, inevitably embroil regulators and/or judges in evaluating the editorial discretion of edge providers — conduct that would clearly qualify for the full protection of the First Amendment as non-commercial speech under Miami Herald. Twitter’s alleged political bias in applying its community standards is no more actionable under consumer protection law than would be Fox News’ political bias in its editorial policies.

The third criterion — “the intentional failure to honor a public or private promise made by, or on behalf of, the provider” — appears to preserve consumer protection claims, but its aim is significantly broader. In Barnes v. Yahoo!, Inc., 565 F.3d 560 (9th Cir. 2009), the court allowed the plaintiff’s suit against Yahoo! to proceed. Barnes sued the company for failing to stop her ex-boyfriend from posting revenge porn. The court ruled that the company had essentially waived its Section 230 immunity when its Director of Communications promised the plaintiff she would “personally walk the statements over to the division responsible for stopping unauthorized profiles and they would take care of it.”

This promissory estoppel theory was limited to the particular facts of that case: a clear promise made directly to a specific user. The Hawley bill’s “public or private promise” language could be read to allow plaintiffs to set aside Section 230 immunity and sue edge providers for far more general statements about content moderation practices that would never qualify for promissory estoppel. By holding companies to every past statement, the Hawley bill aims to stop companies from changing their content moderation policies over time as new challenges emerge — a critical dimension of any company’s editorial discretion.

The fourth criterion — “any other intentional action taken by the provider without an honest belief and purpose, without observing fair dealing standards, or with fraudulent intent” — seems tailor-made for a law school exam on the “void for vagueness” standard. In particular, it is considerably more expansive than the narrow standard the Supreme Court set forth in Central Hudson Gas Elec. v. Public Serv. Comm'n, 447 U.S. 557 (1980), for regulating commercial speech: “there can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity.” In other words, the Court allows the regulation of commercial speech only because of its effects, not its intent. Applying a subjective, rather than an objective standard, would make litigation significantly easier. Thus, this criterion would not be constitutional even if it were applied solely to commercial speech. But as we have already seen with the Fox News example, there would be no way to apply this standard “without evaluating the content … at issue,” as FTC Chairman Muris put it.

The Bill Unconstitutionally Targets Specific Websites

The bill applies to “edge providers,” defined as providers of a website, mobile application or web application with more than $1.5 billion in global revenue and more than 30 million U.S. users or more than 300 million global users, that have accessed the site by any means in the past year. This tailors the bill to apply to just a handful of services: Google (Alphabet), Apple, Facebook (including Instagram and Whatsapp) and Amazon (the so-called “GAFA”) as well as Twitter, eBay, Microsoft, Apple, and TikTok (because the revenue threshold is global). Reddit, Flickr, and Etsy would meet the user thresholds but not the revenue thresholds. Wikipedia wouldn’t be covered because it’s a non-profit.

What may at first seem like a sensible way to focus the effect of the bill actually creates a host of problems. First, it’s possible that, despite posing an existential threat to “Big Tech” companies, Hawley’s bill could actually protect them from competition. By penalizing smaller market entrants for getting too big, Hawley’s bill creates an incentive for small players to get bought-out by their “big tech” counterparts before crossing Hawley’s size threshold — big companies better equipped to handle the legal risks Hawley’s bill would create.

The bill’s scope raises three distinct constitutional problems. First, singling out a small group of websites provides further reason for applying stricter scrutiny. “Minnesota's ink and paper tax violates the First Amendment not only because it singles out the press, but also because it targets a small group of newspapers…. And when the exemption selects such a narrowly defined group to bear the full burden of the tax, the tax begins to resemble more a penalty for a few of the largest newspapers than an attempt to favor struggling smaller enterprises.” Minneapolis Star, 460 U.S. at 591-92. Applying taxes only to large newspapers “poses a particular danger of abuse by the State.” Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221 (1987).

Hawley’s bill poses a “danger of abuse” by focusing on only the largest social networks — all of the ones conservatives complain about being biased against them — while excluding sites with a laissez-faire approach to content moderation, where extremist right-wing content has been allowed to flourish, such as Reddit. The relatively high revenue threshold excludes Reddit as well as other popular social media sites like Yelp (business reviews), IMDB (movie reviews), Fandom (a hosting platform), and Pinterest. The user threshold also excludes smaller social networks that have become gathering places for the Alt Right, like Gab (1.8 million monthly users users) and Minds (1.25 million users total).

The bill might apply to websites for traditional media, but even this is difficult to predict. Websites the largest newspapers and cable channels all meet the monthly user threshold, but won’t qualify for the revenue threshold if separate corporate digital divisions are treated as the “edge providers” covered by the bill. In theory, it might be possible to “pierce the corporate veil” to argue that the parent companies’ revenue should be counted, but this is not what the bill says — which further suggests the bill is tailored to social media sites. In any event, including some large traditional media websites in its scope wouldn’t come anywhere near making the bill broad enough to avoid the concerns of Minneapolis Star or Arkansas Writers' Project.

Second, the bill applies only to a particular subset of Internet media — websites, apps and services that host user content, not services like Netflix or non Internet media. On its own, this all but ensures that the bill would be subject to strict scrutiny — which it would surely fail. See Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) (“Regulations that discriminate among media ... often present serious First Amendment concerns.”); Minneapolis Star Tribune, Co. v. Minnesota Commr of Revenue, 460 U.S. 575, 583 (1983) (a tax applied only to newspapers).

Arguably, a bill that applied equally to all “interactive computer service providers” would be less problematic because it would not single out a “small group” of sites for what amounts to punishment. Abandoning user count or revenue thresholds would avoid the problem of retaliatory targeting, but additional First Amendment problems would remain.

Hawley’s Bill Would Backfire Against Conservatives

It’s impossible to anticipate, ex ante, the net effect of the law upon the decision-making of each social media service — i.e., whether they will do more or less moderation, and whether conservatives would actually benefit overall. The chief purpose of Section 230 was to avoid the “Moderator’s Dilemma,” created by Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 WL 323710 (N.Y. Sup. Ct. 1995). The court held Prodigy more liable because it actively engaged in content moderation to create a “family-friendly” service. If edge providers fear that removing certain content may increase their legal risks, they will moderate less. On the other hand, they may calculate that more moderation will allow them to claim a more consistent approach.

That the same law could produce diametrically opposite results is not at all unusual in First Amendment jurisprudence. This is precisely the constitutional problem with vague laws: they are both unpredictable and highly subject to manipulation by those charged with enforcement.

Empowering the government to determine political neutrality cuts both ways. Discouraging edge providers from moderating incendiary or abusive speech from the right will have the same kinds of effects on the left. Democrats will just as easily claim “bias” when speech they like is removed. Consequently, social media sites will hesitate to take down content from Antifa or radical anti-police activists for fear that a Democratic FTCor state attorney general will sue them.

More generally, if Republicans start suing edge providers for failing to deliver on the claim of neutrality required by the new Hawley bill, you could count on Democrats — when they have the chance — to start suing social media operators for not living up to other provisions in their community standards. Consider Twitter’s Community Standards:

Twitter has made an editorial decision not to remove tweets posted by President Trump that seem to violate all of these prongs (minus the one about child sexual exploitation). The First Amendment clearly protects their right to make that decision, but if the government could hold a company to such statements about its editorial practices, as Hawley claims, without violating the First Amendment, why couldn’t a Democratic FTC make the same argument about Twitter not living up to its promise to enforce its community standards? Indeed, Facebook has been heavily criticized by groups on the left for failing to do more to take down racist content that may even incite users to violence.

For better or worse, the First Amendment prevents the government from forcing Facebook, Twitter or any other social media sites to change how they favor, disfavor, or remove user content. But if Hawley’s bill were somehow to pass now, it could just as easily be used by a Biden administration to pressure social media sites to take down right-leaning content in the years it would take for the complex legal questions outlined here to work their way through the courts.

The “Problem” for Republicans Isn’t 230, but the First Amendment

In the end, Republicans’ complaints aren’t really about Section 230, but about the First Amendment. Yes, Section 230 protects websites from liability for user content — “death by ten thousand duck-bites.” Roommates, 521 F.3d at 1174. While the Hawley bill and Trump’s Executive Order both make edge providers liable for what users say, this is only a means to an end; their real focus is not on the decision made by edge providers to host potentially unlawful content, but on their decision not to host content they deem objectionable. That decision is one the First Amendment protects as fully for websites as it does for newspapers or Fox News.

Trump, Hawley and other Republicans would do well to remember what President Reagan said when he vetoed legislation to restore the Fairness Doctrine back in 1987:

We must not ignore the obvious intent of the First Amendment, which is to promote vigorous public debate and a diversity of viewpoints in the public forum as a whole, not in any particular medium, let alone in any particular journalistic outlet. History has shown that the dangers of an overly timid or biased press cannot be averted through bureaucratic regulation, but only through the freedom and competition that the First Amendment sought to guarantee.

Republicans should ask themselves: “WWRD—What Would Reagan Do?” The answer should, by now, be clear: “Congress shall make no law…”

Filed Under: 1st amendment, fcc, free speech, ftc, josh hawley, ntia, section 230, unfair practices