Sen. Hawley Argues Against Big Tech’s Contradictory Positions on Content Moderation and Liability
Introduction
In 2024, the Supreme Court will weigh in on a series of cases challenging state laws that seek to regulate Big Tech companies’ content moderation practices. These cases hinge on a fundamental question: can these companies claim immunity from liability under Section 230 of the Communications Decency Act while simultaneously asserting First Amendment rights to censor content? Senator Josh Hawley of Missouri has filed a brief urging the Court to reject Big Tech’s arguments, which he views as contradictory and potentially detrimental to public discourse.
Background
Section 230 of the Communications Decency Act
In 1996, Congress enacted Section 230 of the Communications Decency Act, a provision that has had a profound impact on the development of the internet. Section 230 broadly shields online platforms from civil liability for user-generated content, a provision justified on the basis that platforms could not exercise publisher-level control over third-party speech.
Recent Developments
In recent years, however, Big Tech companies have increasingly asserted that their content moderation decisions are expressive and protected by the First Amendment. This argument has been employed to challenge state laws that restrict the companies’ ability to moderate content.
Senator Hawley’s Brief
In his brief, Senator Hawley argues that Big Tech companies cannot have it both ways. They cannot simultaneously claim immunity from liability under Section 230 and assert First Amendment rights to censor content. Hawley warns that allowing this would effectively immunize the platforms from both civil liability and regulatory oversight.
Hawley’s brief also raises concerns about the potential consequences of allowing Big Tech companies to have unfettered control over content moderation. He argues that this could allow the companies to promote harmful content, such as content promoting eating disorders, while enjoying immunity from liability.
Potential Consequences
Senator Hawley’s concerns are shared by many who see Big Tech’s growing power as a threat to free speech and public discourse. Allowing these companies to have unchecked authority over content moderation could lead to a chilling effect on speech, as users may self-censor to avoid being banned or shadow-banned.
Moreover, Big Tech’s dominance in the online advertising market gives them significant leverage over content creators. This could lead to a situation where platforms promote content that is favorable to their advertisers, even if it is false or misleading.
Conclusion
Senator Hawley’s brief urges the Supreme Court to reject Big Tech’s arguments and to uphold the state laws that limit the companies’ content moderation practices. He argues that this is necessary to protect public discourse and to prevent the companies from abusing their power.
The Court’s decision in these cases will have a profound impact on the future of content moderation on the internet. It will determine whether Big Tech companies will be held accountable for the content they host and whether users will have the freedom to express themselves without fear of censorship.
Additional Points
Circuit Split
The Supreme Court’s decision in these cases will resolve a circuit split on the issue of Big Tech’s First Amendment rights. A federal appeals court ruled in favor of the tech industry in the Florida case, while the Fifth Circuit ruled in favor of a similar law in Texas.
Bipartisan Pressure to Repeal Section 230
Despite Big Tech’s efforts to preserve Section 230, there is bipartisan pressure to repeal all or part of the statute. Critics argue that it has allowed Big Tech companies to avoid accountability for harmful content and to suppress free speech.
Upcoming Supreme Court Hearing
The Supreme Court will hear arguments in the cases, Moody v. NetChoice, LLC and NetChoice LLC v. Paxton, on February 26, 2024. The outcome of these cases will have a significant impact on the future of content moderation on the internet.