Senator Bill Hagerty Believes Compelled Speech Is 'Liberty'; And Anyone Upset With Moderation Choices Should Be Able To Sue

Legal Issues

from the we've-always-been-at-war-with-eastasia,-senator dept

Senator Bill Hagerty was just elected out of Tennessee to take over Lamar Alexander’s old seat, and he’s kicking off his tenure with a bang… of not just unconstitutional madness, but anti-Constitutional madness. And this from a guy who presents himself as a Constitutional originalist. But, of course, when it comes to nurturing culture wars, today’s GOP apparently believes that they can throw the Constitution out the window… as long as they (1) claim they’re owning the libs, and (2) pretend that they’re tearing up the Constitution to save the Constitution.

In this case, Hagerty has put out a piece in the Wall Street Journal — which will publish any anti-Section 230 screed no matter how factually challenged — to talk about a new bill he’s preparing that would force social media sites to host any and all speech by getting rid of Section 230 and making websites common carriers. Yes, Senator Hagerty is calling for compelled speech, and even more obnoxiously, he’s doing it by claiming it is about “protecting liberty.” The article is ridiculously entitled: Goodbye Section 230, Hello Liberty, though a more accurate title would be “Clueless Senator Wants To Take Away Internet Freedom.”

Let’s dig in.

For too long Americans have watched Big Tech trample on the principles of the First Amendment?free speech, freedom of thought and belief, free assembly and the open exchange of ideas. As more information is filtered through online platforms, the First Amendment is becoming a dead letter. That?s why I?m taking action to hold these corporations accountable.

So much nonsense in just one paragraph. First off, the 1st Amendment protects against government intrusions into speech, and so it’s literally impossible for “Big Tech” to “trample on the principles of the First Amendment” unless they’re being compelled to do so by government actors. Second, nothing “big tech” does harms “free speech, freedom of thought and belief, free assembly and the open exchange of ideas.” You can still do that all over the internet. You just can’t force one particular site to host your nonsense if they feel it violates their policies.

Republicans like Hagerty used to talk up the importance of private property rights, but apparently that goes out the window when Facebook decides it doesn’t want Nazis and conspiracy theorists on its property any more.

Finally, “hold these corporations accountable” for what, exactly? They have every right to run their own private property the way they want to. They cannot be compelled to host speech they do not feel they wish to host.

Today, I?m introducing the 21st Century Foundation for the Right to Express and Engage in Speech Act (or the 21st Century FREE Speech Act), which would restore the Bill of Rights?rather than the whims of big companies?as the guide for what Americans can say or hear in today?s public square.

Amusingly, in searching for the actual text of this bill, I initially couldn’t find anything. I could only find (1) this WSJ op-ed, and (2) Bill Hagerty promoting the bill on… Twitter and Facebook, two of the “big tech” platforms he complains are censoring his speech. Eventually I found a copy of the bill not on the government website where it should be posted, but on Scribd… yet another private social media company. I’ve uploaded a copy to Document Cloud for easier access.

However, for someone who has a law degree (does Vanderbilt offer refunds?), he sure seems confused about the Bill of Rights. The Bill of Rights protects against government intrusion of our rights — and that includes the right not to have the government compel speech. This bill is not about “restoring the Bill of Rights” it’s about violating it. Companies have always had the right to determine what speech is on their platform. It’s why the NY Times won’t ever publish my op-ed about how “Bill Hagerty Is A Bad Senator Who Hates The Bill of Rights.”

The modern public square is dominated by ubiquitous platforms facing little meaningful competition. Instead of being accountable to consumers or voters, the companies that dominate communication today use opaque, inconsistent practices to control the information Americans get to see and discuss. As Justice Clarence Thomas noted in a recent Supreme Court opinion, common carriers?such as trains or phone networks, which are essential to everyday goings-on, connecting people and information?have historically been subject ?to special regulations, including a general requirement to serve all comers? without discrimination. The same logic should apply today to Big Tech.

Each paragraph seems to stuff itself with more wrong than the previous one. First of all, if the issue is “little meaningful competition,” then the answer should be to focus on increasing competition, not putting on even more regulations that would lock in today’s largest players. But, of course, even the idea that they face “little meaningful competition” is laughable. As you start looking at just how many players there are in the realm of today’s “public square,” you’ve got Facebook (including Instagram and WhatsApp), YouTube, Twitter, Snapchat, Reddit, TikTok, Discord, Clubhouse, Medium, Substack, Imgur, Vimeo, DailyMotion and many, many more. And if none of those work for you, you can set up your own blog or your own website. Just the fact that in the past couple of years TikTok, Clubhouse, Zoom, Discord, and Substack and a bunch of others have all basically come out of nowhere and built up a huge audience certainly suggests that there remains plenty of openings for competition.

We’ve already responded to Clarence Thomas’s bizarre unbriefed musings, but let’s dig in a little deeper on this whole “common carrier” idea. The nature of common carriers is entirely different from the nature of social media. Common carriers tend to be (1) commodity style services (such that replacing one with another leads to basically the same service) that (2) transport goods/people/information from one place to another. Neither condition applies to social media. Every social media site is different from one another, and you can’t just swap out one for the other. It’s not a commodity style service. Indeed, since social media is about community, each site takes a different approach to try to attract the community they want. They’re not offering up a utility style service. Second, they are (for the most part!) hosting content, rather than just transmitting it from one location to the other. If you’re transmitting, then the arguments for common carrier regulations are stronger, but if you’re hosting, it just doesn’t make any sense.

Finally, I’m going to go out on a limb here and say that Bill Haggerty opposes net neutrality (these days, basically all Republicans do). Yet, with net neutrality (involving commodity services and data transport) there is a much stronger common carrier argument. So it’s bizarre to see him suggesting this here where it does not make any sense. Indeed, in looking at the text of the actual bill, it explicitly excludes broadband providers! So, this just doubles down on how full of shit this bill is. It tries to impose common carrier obligations on those who don’t meet the definition, but explicitly excludes the companies that do meet the definition and which are significantly less competitive than social media!

Unfortunately, our laws haven’t kept pace with this technological reality. The statutes governing free speech and the free exchange of ideas online haven’t been updated in a quarter-century. Since it was passed in 1996, Section 230 has been stretched from its original intent?the promotion of the free exchange of ideas online?into a license for companies like Facebook and Twitter to censor.

Again, the exact intent of 230, as explained multiple times by its co-authors, including Republican Chris Cox, was to encourage companies to actively moderate their websites to create family friendly communities. Hell, the bill itself was in response to the Prodigy ruling, in which a judge said that by doing any moderation, the “family friendly” Prodigy became liable for any content that was left up. Cox worried that this would fill the internet with garbage, and make it unusable by children, because websites would avoid any moderation. So, the paragraph above is just wrong historically.

In recent months, these platforms have effectively smothered newspaper stories that they found inconvenient for their loudest users? preferred candidates.

This is not true. (1) They did not “smother” those newspaper stories, and the actions taken by the platforms got those stories much more attention. (2) The reasons those stories were stopped from sharing was due to legitimate concerns that they violated platform policies — and had nothing to do with any “preferred candidate.”

Big Tech companies have silenced mainstream American political figures, while leaving up Iran?s Supreme Leader Ali Khamenei?s account, even as he tweets hateful things, including calls to ?eliminate Israel? and discussions of how to do so. These platforms have censored and editorialized with blatant political bias?writing progressive ideology into their content policies or scrubbing dissent against Covid lockdowns off their sites. Moderate and conservative viral content is suppressed. Twitter blocked the account of the New York Post over its reporting on Hunter Biden, while Amazon removed from its streaming service an acclaimed documentary on Justice Thomas during Black History Month. Implicit in these censorship practices is an apparent belief that Big Tech has the right to shape what Americans can learn and believe?a totalitarian concept that runs contrary to U.S. values.

There’s a lot of selective cherry-picking in here that ignores tons of stories on the other side. It ignores the times the platforms have bent over backwards to give online trolls and rabble rousers extra space to avoid being called out for “bias.” It ignores all the times the platforms have taken down people for other policy violations. And it reframes every one of these stories to avoid explaining why the content and users in question violated long standing policies that the platforms had in place for useful reasons.

My bill would (1) abolish Section 230, (2) treat Big Tech?defined as any interactive computer service platform with more than 100 million active monthly users world-wide?like a common carrier that must provide reasonable, nondiscriminatory access to all consumers, and (3) prohibit political censorship by Big Tech.

(1) Would lock in the power of big tech by making it nearly impossible for newcomers to be able to withstand the legal liability of hosting 3rd party content — which would directly undermine Hagerty’s own claims of how the real problem is a lack of competition. (2) Would, again, lock in those big providers and guarantee that those sites become unusable as they would fill sites with spam, hate, harassment, bigotry, porn, and more. (3) Would violate the 1st Amendment.

Other than that, Senator, have you got any other stupid ideas?

In addition to not discriminating against political opinions their employees personally dislike, social-media companies should be required to provide basic consumer transparency regarding their products, given that many Americans rely on them for news and information. The 21st Century FREE Speech Act would require platforms to disclose their content management and moderation practices to users, so that consumers can understand and better manage the information they receive.

Every one of these websites already has publicly accessible user policies and releases transparency reports. But if being a website that Americans “rely on for news and information” is the characteristic here — will this bill also require that Fox News release a transparency report regarding how it chooses which stories and which guests to put on air? Or nah?

The 21st Century FREE Speech Act would abolish Section 230 in favor of a liability protection framework that marries that section?s original intent with the practical implications of the enormous technological change that has ensued over the past 25 years. Liability protection would remain in place for third-party speech and family-friendly moderation of specifically defined obscene or lewd content, without providing limitless special protection for platforms? own speech and viewpoint censorship. This legislation provides the liability protection necessary to spur continued innovation, without giving companies carte blanche to censor speech on political, religious, or other grounds.

Oh, I see. You’re creating a policy that treats different speech differently. Which is pretty clearly not allowed under the 1st Amendment. You must have learned about it at law school.

Ultimately, the 21st Century FREE Speech Act is about promoting free speech, thought and exchange of ideas.

Compelling speech — including abuse, hate, and harassment — is the opposite of promoting free speech.

As Justice Oliver Wendell Holmes Jr. , put it in a 1919 Supreme Court opinion concerning the censorship issue of his day, the prosecution of printers of an anti-U.S. leaflet during World War I: ?The theory of our Constitution? is that ?the ultimate good desired is better reached by free trade in ideas? and ?the best test of truth is the power of the thought to get itself accepted in the competition of the market.?

And yet, your bill would kill off this market, and refuse to allow private companies to create spaces where speakers feel free to say what they want.

This freedom to think, discuss and determine one?s own beliefs is the foundation of American liberty and opportunity. Washington can?t allow Twitter and Facebook to eliminate these freedoms. We owe it to our children and grandchildren to ensure they are preserved.

And this bill does the opposite of that. We also owe our children and grandchildren not to have Congress mock the 1st Amendment with bills like yours.

As for the actual bill, it’s even dumber than I expected. It limits moderation protections to a very narrow class of content, and then puts ridiculous (easily unconstitutional) limits on those. It says you can only moderate “obscene, lewd, lascivious, filthy, excessively violent, harassing, promoting self-harm, or unlawful” content. At first, I thought this meant that all spam must be allowed, but in the clarifications, the bill notes that spam can be moderated as “harassing” content… which is bizarre.

The bill also includes a ridiculous private right of action, that would allow any user to sue any website if the person is “aggrieved” by a moderation choice, and can ask a court to get an injunction, barring the moderation decision and award $500. Holy shit. Every single website would immediately shut down their comments (including ours). This is wildly unconstitutional. For all of Hagerty’s high and mighty talk about the 1st Amendment, this is a massive infringement upon the 1st Amendment rights of anyone operating a website (not to mention their own private property rights).

There have been so many bad and unconstitutional attempts to change and reform 230, but this one is just completely disconnected from reality. The people of Tennessee deserve better. Elect better Senators, people.

Filed Under: 1st amendment, bill hagerty, common carriers, compelled speech, content moderation, free speech, net neutrality, private property, section 230