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The GOP Section 230 Strategy Will Benefit Trump and Only Trump

Don’t kill the golden goose.
June 4, 2020
The GOP Section 230 Strategy Will Benefit Trump and Only Trump
The Twitter page of U.S. President Donald Trump is displayed on a mobile phone on May 28, 2020, in Arlington, Virginia. (Olivier Douliery / AFP / Getty)

By now most people will have seen various Republican politicians, including President Trump, lash out at tech giants in one way or another. The attacks stem from a perception that these companies, mostly based in West Coast liberal bastions, are using their power to silence voices on the right. It certainly makes for good political fodder with the conservative base. Conservatives spent decades justifiably frustrated with the traditional mainstream media, but this is very different.

The current GOP strategy of attacking big tech may produce some short-term political gain for President Trump and his allies, but it will come at the cost of a long-run political and economic nightmare for the Republican party.

These days, their favored strategy is targeting a provision of the Communications Decency Act called Section 230. President Trump signed an executive order targeting it last week. 

Some critics on the right see Section 230 as a license to be biased. That is incorrect. It is a license for companies to exercise their protected rights of free speech, association, and property rights. In doing so, Section 230 has empowered companies to leave their websites mostly free and open to those who agree to abide by their terms and conditions.

Section 230 provides third-party liability protection critical to the rise and survival of the Internet companies we know today, from Airbnb to Zoom. With a few exceptions, it means that you are responsible for what you say on Twitter or Facebook or any other website, not the website itself.

In the very early days of the web, before Section 230 became law in 1996, if a website moderated content—by, for example, deleting pornography or spam—the site assumed liability for the thousands of things posted daily. As a result, many sites wouldn’t moderate at all. Or allow comments. This is one of the many reasons a world without 230 looks very different and very grim for conservatives, and they should be careful what they wish for.

Without Section 230, companies would be forced to choose between heavily restricted access and completely open access. In the latter case, content moderators would no longer be able to remove objectionable content like pornography, violence, terrorist propaganda from Facebook, Twitter, or YouTube. The Internet would quickly become inundated with such objectionable material. Like it or not, such content is generally protected by the First Amendment. After all, the First Amendment has never been about protecting speech everyone likes. 

Despite what may be legitimate issues of bias in tech companies’ application of their terms and conditions, conservatives must look at the overwhelmingly positive net impact that big tech has had in allowing them to advance their ideas. For example, YouTube would not exist in a world without Section 230. In practice, that means conservative radio host Dennis Prager’s PragerU videos would not have 1 billion-plus collective views. 

Prager’s example perfectly illustrates a broader problem on the right. Despite amassing astronomical numbers of clicks and views—enormous in comparison even to some of the most-watched programs on television news—Prager filed an ill-fated suit against Google, YouTube’s parent company, alleging bias and censorship. The Ninth Circuit tossed the suit in an unanimous 3-0 decision with two GOP-appointed judges affirming the company’s First Amendment rights to determine what content to allow on its platform.

The strategy to target big tech now has shifted from courts of law to the court of public opinion. Conservatives are now arguing that since big tech companies are making editorial judgments about the content on their websites, they should lose the protection of Section 230. Yet Section 230 explicitly allows companies to make such constitutionally protected judgments without fear of tort lawsuits for anything else on their websites they may have missed. A company shouldn’t be responsible for small amounts of libelous or slanderous content among the sea of routine posts just because they choose to filter out pornography. It’s impossible to know, for example, if a comment is libelous in every instance.

Let’s bring this into focus in terms of the right’s political strategy. Some conservatives do not like the way private companies are exercising their constitutional rights. In response, they are threatening to let trial lawyers, an industry notorious for its deep ties to the political left, and long a GOP bogeyman, enrich themselves by suing tech companies into oblivion. 

Adding insult to injury for conservatives is the other industry that would benefit the most from the elimination of Section 230—print and broadcast journalism. Ultimately, most “free” online services rely on advertising dollars. They compete vigorously for those dollars with traditional media companies. 

Eliminating Section 230 would reinvigorate the dominant media gatekeepers that conservatives have long accused of shutting out their viewpoints. For web services focused on user-created content that do manage to survive, content-moderation practices would be significantly tightened—and ultimately enforced by the same people being accused of anti-conservative bias today. Put simply, it would give even more power to tighten the screws to the people that Senator Josh Hawley, a leading critic of Sec. 230, distrusts in the first place.

Prominent conservative voices would find themselves back at square one and forfeit the largely open access to enormous audiences they enjoy today. Perhaps it would be useful for a victimhood-themed donation appeal, but it seems penny wise and pound foolish as a long-term strategy.

Conservatives should also be extremely wary about the negative economic impact of modifying Sec. 230.

President Trump loves to tout the stock market as an indicator of the success of his policies. What do you think will happen to the market if he is successful in his effort to “revoke 230,” as he recently Tweeted? (With no sense of irony.) Alphabet (parent company of Google), Facebook, Apple, Amazon, Microsoft, and other tech giants capitalized at or nearing $1 trillion rely on Section 230 in many critical aspects of their businesses. It’s hard to comprehend the impact on financial markets of telling the most valuable companies in history to throw much of their business model out the window. 

But Section 230 isn’t just about the big guys. Section 230 is a key ingredient in the lifeblood of many mom-and-pop businesses and other small businesses aspiring to take on the big guys. 

Today, major tech companies devote enormous resources to moderate content on their websites—resources the next Facebook or Google being coded in a dorm room or garage today doesn’t have. Section 230 allows these upstarts to focus time and resources on building a better core product instead of policing content that is growing at an exponential rate. MySpace was being called a monopoly just over a decade ago, while no one realized Facebook was eating MySpace’s lunch. This probably won’t happen again if Section 230 protections are eliminated.

Some conservatives might not care about what happens to Silicon Valley firms and entrepreneurs with deep pockets. They should. Section 230 is responsible for countless small non-tech businesses across the country. My own parents sustain their retirement with a small cottage-rental business powered by Airbnb and HomeAway. Without Section 230, they’d be left sticking “For Rent” signs in the yard and hoping someone interested happened to be driving by on the back roads of New England.

Again, the crux of Section 230 is that you, not the website where you post it, are liable for what you post online. This doesn’t just apply to social media, but to online marketplaces as well. Without 230, it’s hard to see how Airbnb’s, or eBay’s, or Craigslist’s, or much of Amazon’s business model would survive. Yet all of these services allow countless small mom-and-pop businesses to reach the customers they need to remain sustainable. There’s a reason why the hotel industry has aggressively lobbied for repeal of Sec. 230 as part of its assault on Airbnb. They hate the competition.

Yes, Section 230 has helped make many people in San Francisco and Seattle very rich, but that does not mean it has come at the expense of the political or economic power of communities in red states. In fact, just the opposite has happened. Anyone with a smartphone is now his or her own journalist, advertiser, or entrepreneur with direct access to virtually limitless audiences and customer bases.

What would truly empower the few at the expense of the many, and conservatives in particular, would be to allow President Trump and his allies to amend Section 230 for their own short-term political gain. They’re going to pose as dragon slayers when all they really did was kill a golden goose. 

Patrick Hedger

Patrick Hedger is a research fellow with the Competitive Enterprise Institute’s Center for Technology and Innovation.