Josh Hawley Introduces Bill to Put Washington In Charge of Internet Speech

Hawley is selling it as a way to fight tech-company "bias" against Republicans. Don't believe him.

Sen. Josh Hawley (R–Mo.) is introducing legislation to clamp down on free expression online, under the pretense of fighting tech-company "bias" against Republicans.

Hawley's solution is to amend Section 230 of the Communications Decency Act, a measure that prevents individual users of internet platforms and the companies that run them from being treated as legally indistinguishable from one another. Without it, digital companies and the users of their products (i.e., all of us) could be sued in civil court or subject to state criminal prosecution over content and messages created and published by others.

State attorneys general have been howling about Section 230 for more than a decade because it means that only the federal government can criminally prosecute internet intermediaries. Thus, state prosecutors don't have the opportunity to seize assets and bring in big financial settlements themselves.

As attorney general of Missouri, Hawley joined in the tradition of Democratic Sen. Kamala Harris when she was attorney general of California, and the top cops from many other states, in begging Congress to amend Section 230. The first time around, back in 2013, the excuse attorneys general used was "child sex trafficking," falsely insisting that Section 230 stopped knowing perpetrators of this horrific crime from being brought to justice.* (In fact, nothing in Section 230 has ever prevented the Department of Justice from enforcing federal criminal laws, including laws against forced or underage prostitution.)

When that proved a successful ruse—resulting in the 2018 passage of FOSTA, which both amended Section 230 and made facilitating prostitution a federal crime—politicians were emboldened in their power grab for online speech. Now, national and state leaders are insisting that Section 230 must be destroyed in order to fight "foreign influence" in our elections, the manipulated videos known as "deepfakes," fentanyl trafficking, gun violence, and an array of other (sometimes real, sometimes imaginary) problems.

For some Republican leaders—chief among them Hawley—this has led to the truly Orwellian tack of trying to convince conservative internet users that taking away protection for online speech will somehow allow them to speak more freely. That's the nonsensical proposition at the heart of Hawley's new legislation, misleadingly called the "Ending Support for Internet Censorship Act."

The measure would give the government control over online speech by denying Section 230 protections to platforms that don't hand over an array of private intellectual property and satisfactorily prove to a bunch of partisan political appointees that they are operating in a "politically neutral" manner. Essentially, Hawley wants to revive the old Fairness Doctrine—a policy that was roundly denounced by conservatives for its chilling effect on free speech and its propensity to further marginalize non-mainstream voices—and apply this cursed policy paradigm to anything online.

Under Hawley's bill, companies would be required to reapply with the Federal Trade Commission every two years for this political favor—a situation that would mean companies having "to constantly curry favor with the administration," as Mapbox policy head Tom Lee noted on Twitter. Hawley's proposal would also require tech companies to discipline or fire any employee who made a content moderation decision that bureaucrats deem to be in violation of online-speech neutrality principles.

With stakes like these, the only viable path for tech companies would be to censor vastly more political speech, not less.

"Today I've introduced legislation to end Big Tech's biggest sweetheart deal from government," Hawley tweeted Wednesday morning. "No more government protection for Big Tech's political censorship."

Censorship would be universally worse without Section 230 and, as someone who studied law, Hawley should know this. But it doesn't matter what he knows about Section 230, it matters what the masses know about Section 230—which was basically zilch, until recently. That's what makes it easy for folks like Hawley, Harris, and the rest of the bipartisan chorus calling for 230's demise to manipulate their base into buying that it's about "bias" or "sex trafficking" or "gun violence" or any other number of hated things.

But no matter how many culture war red flags Hawley and company raise, their solutions all come down to the same thing: letting folks in Washington have more say over what can be said on the internet, and using tweaks to Section 230 to do it. When Democrats and Republicans professing diametrically opposed goals settle on the same solution, it's a good clue that politicians aren't telling their constituents the truth.

* CLARIFICATION: The original version of this passage implied that Hawley and Harris were attorneys general at the same time. They did not overlap and Hawley was not a signatory to the 2013 letter from the attorneys general to Congress about 230.