My USA Today Op Ed on Josh Hawley, Freedom of Speech, and Threats to Liberty From Left and Right

Both Hawley's "national conservatism" and similar ideas prevalent in many quarters on the left threaten free speech and liberty more generally.


Sen. Josh Hawley (R-Missouri).


This morning, USA Today published my new op ed (free registration may be required, though can be gotten around by accessing from Facebook or from a smartphone) on how Sen. Josh Hawley's "national conservatism" is a menace to free speech (especially online) and liberty generally. I also point out how similar ideas are prevalent in many quarters on the left. Here's an excerpt:

Simon & Schuster recently terminated its contract to publish Republican Sen. Josh Hawley's book, "The Tyranny of Big Tech," because of his role in promoting dubious objections to congressional certification of Joe Biden's victory in the 2020 presidential election. Hawley responded by condemning the decision as "a direct assault on the First Amendment."

Numerous commentators justifiably derided Hawley's claim…. Under Supreme Court precedent, Hawley has no constitutional right to force Simon & Schuster to publish his book. Indeed, any such effort would be a violation of the publisher's own First Amendment rights to refuse to publish authors it disapproves of.

Nonetheless, Hawley's statement is not simply the result of ignorance. It is rooted in a broader worldview under which government should have vastly expanded power to control the private sector and thereby restrict constitutional rights. That vision is widespread on the right, among "national conservatives." But it also has close analogues on the left. Both variants are  menaces to liberty….

Hawley and other national conservatives claim that Big Tech firms wield too much influence over the marketplace for political speech, and thus can be pressured into posting material they object to. The government, of course, would have to decide what qualified as appropriate nondiscrimination. This line of argument is similar to progressive claims that the influence of tech firms on political discourse justifies breaking them up (as Sen. Elizabeth Warren and others advocate), or forcing them to exclude political expression governments deem to be inaccurate, "hate speech" or otherwise dangerous. Here too, the government would have to decide what qualified as a firm so big that its influence must be curbed, and what qualified as speech too inaccurate or prejudicial to permit on social media….

In their zeal to counter supposedly dangerous concentrations of corporate influence, both right and left have gone astray. Giving government control over online speech and economic activity does not reduce the concentration of power. It increases it. Instead of a marketplace, however flawed, with competing firms, we end up with a single power center — the federal government — deciding what qualifies as equal treatment of speech (Hawley), what qualifies as misleading or "hate speech" deserving of suppression (the left-wing approach), and which private actors have supposedly excessive influence that must be curbed (both). Moreover, the monopoly regulator in question is far from a neutral umpire. The party in power has obvious incentives to favor its supporters' speech and repress that of opponents.

Conservatives who are comfortable with their own preferred leaders wielding such vast power should ask themselves whether they have similar faith in President-elect Biden, Vice President-elect Kamala Harris or Sen. Warren.

Progressives should ask themselves how they feel about handing it over to the likes of Hawley.

In other parts of the article, I go on to discuss how the ideas advanced by both Hawley and his counterparts on the left potentially threaten other liberties, not just freedom of speech.

My perspective here is in some ways different from that advanced by co-blogger Eugene Volokh, in his insightful recent New York Times op ed on the same subject. While I don't agree with some of the moderation and content decisions made by "big tech" firms, I am less concerned about their influence than Eugene is, and possibly more concerned about the dangers of using government regulation to control social media (though I don't think Eugene actually advocates the latter).

Having gotten death threats on social media, including one from an account later revealed to be that of "pipe bomber" Cesar Sayoc, I am far from an uncritical admirer of all the content on "big tech" sites (though I think they have cracked down on threats of violence more effectively in recent years). But, for reasons spelled out in my op ed, I remain wary of giving government broad power to either restrict or mandate what can appear on social media and other websites.

NEXT: The Need for Ideological Diversity in American Cultural Institutions

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  1. >death threats on social media
    At least no one called you a “faggot”. Also, that drunk Indian was just mailing firecrackers to people he didn’t like. He was too stupid to build anything deadly. Unlike my boy, Teddy Kaczynski!

  2. Much is made about Twitter “censoring” individuals.

    Do you have any comments about the allegedly “censored” individuals violating their contract with Twitter? If you signed up with Twitter you agreed to their Terms of Service.

    Apparently, the “censored” individuals violated this ToS multiple times and were warned multiple times. When they showed no signs of to comply with the contract, their service was cut off.

    Is it your position that the contract is invalid and that Twitter has no right to enforce it? Is enforcing a contract considered “censorship?” now?

    1. What about when Twitter dishonestly applies it’s terms of service then admits the error weeks later:

      “Twitter chief executive Jack Dorsey says the company was wrong to block weblinks to an unverified political story about US presidential candidate Joe Biden and his family, as it responds to criticism over its handling of the story that had prompted cries of censorship.”

      1. “admits the error weeks later” … after the election.

        Corrupt Hunter is likely not sinking Biden but after all, Trump only needed 44,000 votes to tie. Everything has an impact.

        1. I see this alot, from many quarters…If only Trump got X% of X demographic, he’d have won. Or alternately, it was so close, if only XYZ had let the voters know before the election, be it FDA approval of a vaccine or the Biden corruption story.

          None of that matters, Trump didn’t get enough of the ballot box stuffing demographic, and that’s why he lost.

          If I were Josh Hawley, I’d be getting my team to look into rural counties where they can work directly with the County Clerk to use the inner city democrat machines own tactics against them. It was was downstate Illinois had to do against the Daley machine in Chicago. Daley was just better at it.

          1. If you were Josh Hawley you wouldn’t be daydreaming fantasy bullshit about election fraud. He may be ruthless enough to pander with that nonsense, but he’s damn sure not stupid enough to actually believe it. He’s not that big a fool.

        2. I’m still waiting to hear what Hunter Biden Truth was hidden from me by the corrupt media. With my two newspapers & NPR, I heard this :

          1. That Hunter may have gotten a business associate a handshake w/ daddy.

          2. That Hunter may have discussed cutting his dad in on a deal that went nowhere. This was after the latter was out of office and a private citizen.

          3. That Hunter’s private life got a bit messy at times.

          So what did that gosh-darn media cover up? Setting aside Giuliani’s “kitty porn” (which never appeared) and Tucker’s “stupendous revelation” (which remained lost in the mail even after it was found), what other stuff did I miss out on?

          Facts please, not overheated supposition….

          1. You got that from NPR?

            This is what NPR’s managing editor said about the Hunter Biden email story:
            “We don’t want to waste our time on stories that are not really stories, and we don’t want to waste the listeners’ and readers’ time on stories that are just pure distractions,”

        3. “admits the error weeks later” … after the election.

          Another person who can’t help but lie. The quote that Kazinski provided is from October 17, which is not “after the election.”

      2. What about when cake bakers dishonestly (in my opinion, of course!) apply their terms of service?

        Grow up and put on big boy pants and stop with the constant victimization meme.

        1. They don’t. They said flat out that they didn’t want to serve people who were going to use their cakes for a gay “wedding.” They didn’t say that they were going to follow every tent of Christianity, so they’re not hypocritical for making cakes for people who have had affairs, as an example.

      3. What about when Twitter dishonestly applies it’s terms of service then admits the error weeks later:

        Not sure what “dishonestly applies its terms of service means.” They changed their policies in response to criticism; they didn’t say, “Oh, we were lying.”

  3. I’m not in favor of having the government regulate content either, but I don’t think the public got what we thought we were getting when we conferred section 230 on the tech companies.

    I’m in favor of 2 remedies, curb and rollback anti-competitive aquisitions by the tech companies, for instance Facebook should never have been allowed to snap up Instagram and Whatsapp, their sole purpose was to prevent them from becoming competitors.

    And 2 refine section 230 to require to provide a terms of service agreement of what content is allowed, but also arbitration and damages when Facebook, Twitter, Instagram etc. violates those terms. For instance when Twitter banned NYPost because they claimed the Biden story was “hacked” with no evidence, or even a claim it was hacked by Hunter.

    1. Whew. Okay, let’s see here!

      1. I agree on facebook. They never should have been allowed to acquire Instagram and Whatsapp. But that’s the past; now we have to find some way to deal with the present. Which is either regulation of facebook (as in a utility) or some way of dismantling it (as in Ma Bell).

      2. I disagree, strongly, w/r/t Section 230, but I think it’s because we don’t agree on what 230 does. Section 230 of the CDA only provides a liability shield for the internet provider (like Twitter, etc.) for posting content … that someone else wrote. More importantly, it allows companies like Twitter, etc. to moderate some content without being treated a publisher and being held liable.

      More simple, it promotes free speech. It allows companies and websites to:
      1. Have people (like you and me) post stuff without worrying about being held liable for what we are posting; and

      2. Allows companies to moderate in part (for example, removing pornography, or booting people) without losing that protection.

      Both prongs have been necessary to allow the free-wheeling internet that you are familiar with. It’s an incredibly bizarre misunderstanding of what 230 does to continue to promote this idea, but it’s par for the course for the Trump administration (see also – the whole thing with Amazon and the post office). Eventually everyone believes the lie.

      With regard to your idea …. you understand that a TOS (like any contract) already has its own provisions? I’m not sure the government should be in the business of insisting on contractual terms between private entities as a general matter. 😉

      1. “With regard to your idea …. you understand that a TOS (like any contract) already has its own provisions? I’m not sure the government should be in the business of insisting on contractual terms between private entities as a general matter.”

        Section 230 confers a benefit to the tech companies, the government can and should provide safe harbor provisions to exercise that benefit, and leave it up to the tech companies whether the benefits of section 230 outweigh the cost of conforming to it’s revised terms.

      2. As I’ve said before, the real problem with section 230 is that the limited protection it extended to platforms was treated as absolute.

        Facebook routinely posts its own content, which not being user generated, it is a publisher with respect to. Does it get treated as a publisher when it pushes out an unsolicited “fact-check” when you try to access certain genuinely user posted content? Nope.

        And Facebook routinely moderates in bad faith, (Claiming to be enforcing TOS, but refusing to identify the violated terms, for instance.) or removes content which does not fall into anything like the listed categories of objectionable content. But this still gets treated as though they were operating within the moderation safe harbor Section 230 provides.

        Section 230 as as written was a pretty good idea. Section 230 as enforced could never have gotten out of Congress.

        1. Brett,

          Um, no. This is what I mean when I say that people don’t understand what it does.

          230 doesn’t shield facebook from “moderation in bad faith,” because facebook’s TOS will do that just fine! And it doesn’t need, nor use, 230 as an immunity shield to remove content.

          230 only applies to say that it can remove content (moderation) without being treated as a publisher of the content. In addition, when facebook “speaks” as itself, it doesn’t apply.

          The main reason that people get so hung up on this is that they don’t understand what 230 is, and does, and lump together all sorts of “I don’t like Big Tech” into 230.

          1. Or are willfully lying about it. Hawley and Cruz understand Section 230 perfectly well.

          2. Yes, but if selective moderation opened them to liability, they wouldn’t do it. They’d moderate not at all.

            1. “Yes, but if selective moderation opened them to liability, they wouldn’t do it. They’d moderate not at all.”

              That was the entire issue.

              First, 230 absolved them from liability (no moderation).

              Then it allowed “selective” moderation, given that with the gigantic flood of comments on the internet, they didn’t want to be liable for catching some comments and not all; in other words, the catch-22 of creating liability for removing one comment while leaving another that you didn’t notice up.

        2. They kind of remind me of NYC co-op boards. They’ll decline an applicant, for no reason or bad reasons, and won’t tell them why.

    2. I’m not in favor of having the government regulate content either, but I don’t think the public got what we thought we were getting when we conferred section 230 on the tech companies.

      The public didn’t think anything about it; the public had no idea that there was any such thing. But the segment of the public that thinks otherwise now does so because of a campaign of lies by Trumpkins. 230 is being applied just how it was intended to be: to enable providers to moderate their content as they saw fit without fear of liability.

      Also, 230 is not about “tech companies.”

      And your “refine” proposal is incoherent. 230 is not what enables Facebook, Twitter, Instagram to block content they don’t like; the first amendment is.

  4. Congress has restricted the ability of telephone companies, among others, to decide who to serve and who not to. If it were to include social media companies in the list and regulate them as public utilities, it might be bad policy. But it would hardly violate the First Amendment.

    Senator Hawley might be right on this particular issue, that social media companies unfettered by regulation have too much power over ordinary people who find themselves dependent on them. This country has numerous regulated industries, including communications industries, and regulation has been even tighter in many in the past. Making social networks regulated public utilities may go against Professor Somin’s anti- regulation ideology. It may be bad policy. But saying it would violate the First Amendment is just silly.

    One has to come up with reasoned, rooted arguments even against things one finds emotionally repulsive. This isn’t.

    1. That said, Professor Somin is entitled to accuse Senator Hawley of not being a real conservative on this issue. Political arguments are fine.

  5. My plan.

    Make tech companies divest acquisitions. Google, as a search engine, should not own you tube because of can direct searches to only youtube. No Facebook ownership of Instagram and Whatsapp.

    Eliminate 230 safe harbor provision once a site reaches a certain level of net income. Let’s say 10 million. Or 25 million. Protects small sites like here.

    1. I agree with your first opinion (divestiture would be good for competition).

      On the second, I continue to be baffled. Section 230 is what lets us post things on the internet without having private companies censor us- because they aren’t liable for what we put up there! Whether it’s a facebook post, or something you put in tindr, or advertising your place on AirBnB … the reason we have so much unfettered “stuff” on the internet is because we are allowed to post things, and the companies don’t have to worry about being liable for what WE are saying.

      How do you think the incentives would change if they were liable for our speech? Given what you know of large corporations, do you think they would error on the side of letting us speak (and being sued), or shutting us down?

      1. “Given what you know of large corporations, do you think they would error on the side of letting us speak (and being sued), or shutting us down?”

        The latter but it wouldn’t matter too much because smaller sites would be fully protected and proliferate.

        1. I think you may be unfamiliar with how quickly places get to $10 million with the scale of the internet.

          Take this website. It’s part of the Reason Foundation- total revenue of over 12 million in 2017. So … hmmm.

          Or AirBnB. No big deal, right? Who cares about “free speech” and rentals?

          But wait- here’s the thing. AirBnB is protected from what YOU are posting. In other words, AirBnB allows you to advertise your place, without needing to worry about being sues not just for “defamation,” but also for violating every single local, state, and federal law regarding housing.

          Yeah. Think about that. Now apply that to every internet business that works by allowing other people to create content.

          *shrug* Again, I have the strange feeling that most people don’t know how 230 works, and how important it has been.

          1. Fine, $25 million.

            Or publicly traded as the measure. Want a fat IPO, then you take your chances without 230 protection.

          2. The issue is more that, conservatives have no problem with websites not being held accountable for what other people say, but conservatives do have a problem with websites wielding the power of editors and then not being held accountable for the content they deem acceptable. Liberals go the opposite direction. Their fine with websites not being held accountable for what their users say as long as they are exerting their editing powers on the user base, but they have an issue with websites not being held accountable for what their users say if they are hands off.

            Section 230 protects websites that engage in both types of content management. Even though there has been a clear dividing line drawn in all other forms of law for content neutral moderation and non-content neutral moderation.

            1. ” Even though there has been a clear dividing line drawn in all other forms of law for content neutral moderation and non-content neutral moderation.”

              That hasn’t been the standard for any type of publisher; you are probably confusing certain FA standards that apply to the government.

      2. “How do you think the incentives would change if they were liable for our speech?”

        Who has suggested this? Maybe I missed it.

        From my perspective, what is at stake here the dividing line between publishing content and merely hosting other’s content.

        If you do absolutely no moderation, clearly protected.
        If you do only moderation for speech that is clearly not legally protected, take down notices, etc, should be protected.
        Clearly moderating one perspective according to opaque rules, obviously not in good faith, shouldn’t be protected, but gray area.
        Editing other’s content, adding your own content on top of other’s content, clearly should not be protected. <— This is where things are not working right.

        1. Just a small suggestion., VinniUSMC-

          Before trying to explain to us how Section 230 fails, it would be really helpful if you could understand how it actually works.

          Using various phrases, while not understanding what 230 does, doesn’t help.

          1. As opposed to you, loki13, who has perfect understanding?

            “I say what 230 means!”

            Ok boomer.

    2. Yeah, I think that’s a bad idea because they will just crack down more, and have a better excuse to do so.

      Sure it will retaliate against them by raising their costs substantially, but Europe is already doing that to them anyway.

      1. It’s what allowed US Internet companies to vastly dominate those in countries that remained liable.

        By the way, wreck 230 and decimate millions of retirement funds relying on big tech. Good luck with that, politicians.

        1. “By the way, wreck 230 and decimate millions of retirement funds relying on big tech. Good luck with that, politicians.”

          Ok now do climate regulations and oil companies.

          Someone who is retired or close to retirement who is overweighting tech is an idiot anyway.

    3. Conservative wants Chomskite regulations!

  6. What do you think of the Common Carrier doctrine, in its traditional applications such as stagecoaches? How about as applied to Facebook ?

    1. The common carrier doctrine actually has a lot going for it.

      A surprising number of businesses are regulated by it. Everything from airlines to freight trucks to telephone lines to even some amusement parks. It includes shipment of people, materials, and critically DATA. Basically what it says is the following.

      1. You’ve got to post a public price list
      2. You can’t discriminate on the person, class of people, or content of the item.

      It works best in “natural monopoly” situations, to prevent abuse of the monopoly.

      Moving Amazon Web Service, Apple’s App Store, Twitter, and Facebook to a common carrier status would solve a lot of problems.

      1. And even Amazon’s core business. They shouldn’t be allowed to decline to sell gun parts, confederate flags or Nazi memorabilia

        1. So, Amazon’s core business isn’t an effective monopoly. There are many options of many places to purchase items over the web. Amazon’s web services on the other hand can act as an effective monopoly.

          By contrast Apple’s App store acts as a monopoly for Apps on Apple phones (making up ~25% of the operating system for smart phones). You literally cannot install an app for iphones that isn’t from the iphone store.

          1. “You literally cannot install an app for iphones that isn’t from the iphone store.”

            1. You literally can. You have to jailbreak it, but you can.

            2. There is a remarkably simple solution for people who do not want to use the Apple App Store. Don’t buy an iPhone.

            1. And there’s a remarkably simple solution for gay “couples” who want a “wedding” cake from a religious baker. Don’t go to that baker.

            2. You literally can. You have to jailbreak it, but you can.

              Nice try, Sparky, but jailbreaking is a violation of Apple’s TOS — which you’ve been harping on as contractual obligations throughout the rest of the thread.

              1. Um, no? The issue of a TOS, here, has nothing to do with what I was discussing w/r/t section 230 – since this topic also has nothing to do with it.

                I’d try to explain this to you, but it’s obvious from my other comments (and to anyone with passing knowledge of the subject) and it’s just further evidence that people that want to be lied to can’t learn the truth.

          2. Yeah, the problem is that Amazon gets sweetheart deals from the couriers, so if you have to sell elsewhere, you won’t get that advantage.

  7. This “national conservatism” sounds pretty unattractive. Sort of a thinly disguised white supremacy movement.

    I thought conservatives opposed regulation of business, and wanted to judge people as individuals, not by their ethnicity or nationality.

    Guess I misunderstood.

    Plus, I get nervous when I hear complaints about how the “cosmopolitans” are ruining everything.

    1. Conservatism only appeals to whites, because of fundamental differences between the races.

      1. Look, I hate to jump to conclusions, but it seems as if you’re some kind of racist.

        1. He’s so racist and persistent about it no one is sure if he’s for real.

          1. I’m guessing that most of the worst offenders are actually caricatures run by people like Artie.

        2. With all due respect, any conservative that at this point, doesn’t recognize the realities of race, is not really a conservative, as he’ll support policies that will inevitably doom conservatism.

  8. I’ll just stay here on the sidelines, and watch you folks fight over which ways are the best ways for government to attack press freedom. Three years ago, maybe more, I began predicting this was where Section 230 was taking the internet. No interest then. Not really much interest now. But the prediction was right.

    You all want something utopian, something you can’t have—not because no one will give it to you, but because it isn’t possible to have useful publishing if you get it. And the nation’s public life depends too much on useful publishing to give it up permanently. We all just tried for 4 years to test what happens when you rely on damaged publishing for a while. The results are in. You really want more of that, forever?

    I doubt many of you have thought much about how bad it could get. Deep fakes are a thing. But not yet the thing they will grow into. They are just getting started. Invent better software, put more money behind it, and it’s all hall of mirrors, all the time.

    Won’t it be fun to live in a democracy where citizens can’t rely on anything they hear broadcast, anything they read, anything they see on the internet. Suckers won’t notice. They will fall for it. Bright cynics (the most trusted gauge for intelligence will become cynicism) won’t even try to rely. With all the robots, cynical folks will know only a tiny and diminishing fraction comes from real people. Instead, they will study up to figure out ways to stay on the good side of the robots. When it’s John Henry and the machine, who wins?

    There is only one safe harbor for press freedom. It is public policy tailored to promote publishing diversity and profusion, and to leave all questions of content up to private publishers, private editors, and private authors. If you don’t have enough of those in your publishing ecosystem—all of them, not just the authors—absolutely nothing will stop every possible information miscarriage from doing full damage, every time. Legal buffers will stand no chance of keeping pace. The law will simply give up trying. It almost has already.

    Keep fighting to persuade government to deliver whatever censorship scheme you prefer. It won’t matter in the end. It won’t work. And while you try for it, the nation’s ability to govern itself will continue to disintegrate. While the internet makes everyone stupider.

    Try me again later, if you ever get curious about how it was I was able to tell you this was coming. (I know you don’t think it’s coming. I’m looking ahead to when you catch on.)

    1. “watch you folks fight over which ways are the best ways for government to attack press freedom”

      SL’s fanfic.

  9. A decade ago, I never would have believed that those who write for The Volokh Conspiracy would have me hoping for a civil war just so I could see the *********** like Ilya Somin with their backs against the wall.

    1. You know, advertising that people who support open carry are racist and crazy is probably not the best tactic for advancing that goal.

      1. David Nieporent – Your opposition to Open Carry is more than we could hope for you ********er.

        1. My what now?

    2. Gun nuttery and bigotry go together like movement conservatism and limp disaffectedness.

      Better America is moving on. White, male, conservative blogs and their fans, not so much.

    3. “watch you folks fight over which ways are the best ways for government to attack press freedom”

      SL’s fanfic.

    4. I’ve been hoping for a race war since 2008 or so.

  10. All you had to do was read past articles on here to figure out who is libertarian and not (hint- most anyone commenting here is just a Republican in hiding or a fascist or what have you.)

    Bunch of crying about how Twitter is wrong to shut out the orange melon, etc. etc. Any real libertarian would have easily realized that no one has any first amendment claim on someone’s private property. Same as it ever was- no newspaper has to publish you, no platform has to let you submit content, no auditorium has to entertain your rants.

    1. But of course, a man whose idea of “love” is erupting in another man’s tuchis has a right to a baker’s property?

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