Today’s Senate Judiciary Committee hearing with Jack Dorsey and Mark Zuckerberg covered a lot of ground, in the sense that a pot of chili dumped on the kitchen floor covers a lot of ground. The conversation veered from content moderation to political ads to user tracking to anticompetitive mergers. To the extent that there was a particular legislative agenda, it was once again Section 230 reform.
As you no doubt recall, Section 230 of the Communications Decency Act of 1996 is the law that shields interactive computer services from being legally liable over user-generated content. Because it is one of the only federal laws to deal specifically with internet content, it has become something of a clearinghouse for lawmakers’ gripes about social media, especially among Republican officeholders who insist that the companies discriminate against conservatives. Accordingly, the last tech CEO public flogging, a mere three weeks ago, while nominally about Section 230, was really more like a public venting session in which senators aired their grievances against social media and tried to work the refs ahead of the election.
Today’s hearing, titled “Breaking the News: Censorship, Suppression, and the 2020 Election,” portended more of the same. It was scheduled after Facebook and Twitter each took steps last month to limit or block the spread of a New York Post story about a cache of documents allegedly found on a laptop belonging to Hunter Biden. Twitter, which went so far as to prohibit users from sharing the article in direct messages, reversed course a day later. That didn’t stop the episode from drawing widespread outrage from conservatives. With the election over, however, and the Hunter Biden affair receding into memory, the tone of the latest hearing was slightly less heated than the last one, and slightly more substantive. Unfortunately, this did not raise the level of Section 230 discourse. If anything, it exposed just how confused and unsophisticated the critiques of the law in the Senate continue to be.
At the risk of imposing more coherence than there really was, the main line of attack on Section 230 from Senate Republicans today was that Twitter and Facebook are no longer mere neutral platforms, but rather act as publishers, making editorial decisions about what content to allow and when to add their own content. The idea is that the law is unfairly giving platforms extra protections that ordinary publishers and news organizations don’t get. In one illustrative exchange, Senator Ted Cruz badgered Dorsey about Twitter’s decision to add labels pushing back against claims of voter fraud. “You’re a publisher when you’re doing that,” he barked. “You’re entitled to take a policy position, but you don’t get to pretend you’re not a publisher and get a special benefit under Section 230 as a result.”
Cruz is simply mischaracterizing how Section 230 works. The law protects any interactive website from being sued over content posted by users, whether it’s Facebook posts or comments at the bottom of a Washington Post article. It doesn’t matter whether the company is a “publisher” or not. The reason Twitter can get away with labeling a tweet false is not Section 230; it’s the fact that even absent the law, such an action would not raise any sort of legal liability. If it did, it would be impossible to run any kind of news organization: The essence of publishing is deciding what’s true and what’s false, what is and isn’t fit to print. These judgments would be impossible if they routinely put publishers into legal jeopardy. (This is why the First Amendment makes it very hard for public figures to sue for defamation. Even without Section 230, lawmakers would have very little recourse when it comes to mean tweets.)
Today’s hearing did little to dispel the notion that Congress is hopelessly behind the curve when it comes to regulating the tech sector. That’s a shame, because we’ve seen that this doesn’t have to be the case. The House of Representatives has long played second fiddle to the Senate, but the recently concluded investigation by the House antitrust subcommittee was a model of informed policymaking that puts Section 230 kangaroo courts to shame. The key differences? The House committee spent a lot of time and energy investigating Silicon Valley and managed to arrive at a shared, bipartisan understanding of what problems are posed by the biggest firms, even if Democrats and Republicans disagree on the right remedies. In the Senate, by contrast, the two parties are operating in alternate universes, with Republicans complaining about social media censoriousness while Democrats urge them to prohibit even more content. Unfortunately, that’s a dynamic that Donald Trump’s election defeat doesn’t seem to have dislodged.
As for painstaking, thorough fact-finding? Well, judiciary committee chair Lindsey Graham gave some sense of what that looks like on the Senate level when he punctuated his round of questioning by asking Dorsey and Zuckerberg if they’d seen the Netflix documentary “The Social Dilemma.” As my colleague Arielle Pardes recently observed, that film advances critiques of social media platforms that feel stale in 2020, while offering little in the way of solutions. In that sense, Graham could hardly have picked a better reference.
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