42993-crn_106-2 Sheet No. 80 Side A 03/12/2021 06:20:48 457 NOTE NOTE Lily A. Coad† MODERATION MODERATION NEUTRALITY IN ONLINE CONTENT CONTENT IN ONLINE NEUTRALITY k. important law is under attac The Internet’s most Sec- 230 plays in the mod- In spite of the essential role Section introduced a bill In 2019, Senator Josh Hawley (R-Mo.) COMPELLING CODE: A FIRST AMENDMENT A FIRST AMENDMENT CODE: COMPELLING Cornell Law Review, Vol. 106. Professor Nelson I am incredibly grateful to ARGUMENT AGAINST REQUIRING POLITICAL POLITICAL REQUIRING AGAINST ARGUMENT B.A., Duke University, 2018; J.D., Cornell Law School, 2021; Publishing B.A., Duke University, 2018; J.D., Cornell tion 230, the statute that provides tech companies with legal that provides tech companies tion 230, the statute users, has for content shared by their immunity from liability one of to- way into the spotlight, becoming recently found its debated topics.day’s most hotly provi- The short but mighty in socially tech companies can engage sion ensures that as removing hate speech beneficial content moderation (such without risking or flagging posts containing misinformation) that slip through the cracks. enormous liability for any posts with the impossible task Without it, companies would be faced and comment for potential of screening every post, tweet, liability. ern Internet, lawmakers from across the political spectrum have condemned the statute––and the tech giants that it pro- tects. media companies should be While Democrats say social the misinformation and held responsible for failing to quash many Republicans believe radicalization on their platforms, conservative views. that social media is biased against of big tech and Sec- that exemplifies conservatives’ criticisms tion 230. Internet Censorship Act The Ending Support for bias” on so- seeks to eradicate the alleged “anti-conservative large tech companies to cial media platforms by requiring moderation algorithms and maintain politically neutral content † M K \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown Seq: 1 15-FEB-21 11:00 Editor, Tebbe for his support and advice in the early stages of this Note, to Professor my Michael Dorf for his thoughtful feedback, and to Tyler Valeska for challenging thinking and helping me keep up with the ever-changing Section 230 landscape. and Thank you to everyone who indulged me in conversations about Section 230 the First Amendment over the course of the past year. A special thank you to my mom for making me the writer I am and the lawyer I will become. Finally, thank you to my fellow Cornell Law Review editors for their hard work in preparing this Note for publication. C Y 42993-crn_106-2 Sheet No. 80 Side A No. 80 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 80 Side B 03/12/2021 06:20:48 R R R R R R R R R R R R M K C Y ...... 483 483 ...... See, e.g., Emily [Vol. 106:457 106:457 [Vol. OLITICAL ...... 491 491 ...... P ...... 496 496 ...... Currently, large 1 ...... 468 468 ...... UPPORT FOR S EJECTING A 230 NCONSTITUTIONAL ...... 476 476 ...... : R U NDING ...... 472 472 ...... E DEA ECTION I CT S A AD ...... 477 477 ...... NTRODUCTION I B ...... 472 472 ...... ASSING OOK AT THE ...... 492 492 ...... UST A EQUIREMENT AS CORNELL CORNELL LAW REVIEW : P L ...... 484 484 ...... J ENSORSHIP R C EPTH HAN ...... 458 458 ...... 498 498 ...... REQUEL T -D N P Senator Hawley’s Political Neutrality Senator Hawley’s Political Neutrality Requirement a Political Immediate Backlash Against Neutrality Requirement Why Is It Worth What Does the Bill Mean, and Talking About? Senator Hawley’s Bill Cannot Survive Strict Senator Hawley’s Bill Cannot Scrutiny Unconstitutionality . . . and Beyond Yes, Content Moderation Algorithms Are Yes, Content Moderation Algorithms Speech Compelling the Message of Neutrality I ORE EUTRALITY N HE ers calling for greater regulation of kers calling for greater With so many lawma NTERNET A. B. C. C. D. A. B. N I M A T Both Senator Ted Cruz (R-Tex.) and House Speaker Nancy Pelosi (D-Cal.), The Internet’s most important law is under attack from all The Internet’s most important practices. to companies tech that requiring argues This Note is a algorithms moderation content neutral politically maintain un- presumptively and is therefore speech form of compelled First Amendment. under the constitutional Further, it argues stan- the applicable cannot survive Hawley’s bill that Senator alleged political eliminating strict scrutiny because dard of - a compelling govern is not social media companies bias by not narrowly even if it were, the bill is ment interest, and, that interest. tailored to serving defend the now more than ever to big tech, it is imperative their content rights of tech companies to First Amendment of and to emphasize the importance moderation algorithms Internet and its continued growth. Section 230 to the I. II. 1 III. ONCLUSION NTRODUCTION among others, have called for stricter regulation of “big tech.” C I \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown 458 Seq: 2 15-FEB-21 11:00 angles. bridging the gap across a particu- Even in an era when - larly polarized political aisle seems synonymous with “impossi ble,” support for the regulation of powerful technology companies has risen to the status of a bipartisan cause. Dem- ac- ocrats and Republicans alike have been calling for greater countability on the part of “Big Tech.” 42993-crn_106-2 Sheet No. 80 Side B No. 80 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 81 Side A 03/12/2021 06:20:48 R ILL 459 459 , H Therefore, 5 Defending Section (Aug. 16, 2019), https:/ OV .G ]. 230(c)(2), (f)(2) (defining “interac- ENATE §§ .S

No matter which side of the which side No matter 3 - Sen. Cruz: Latest Twitter Bias Under RUZ , C The statute, Section 230 of the The statute, Section 230 of (July 11, 2019), https://thefederalist.com/ (July 11, 2019), https://thefederalist.com/ 4 see also id. Facebook cannot be held liable for a Facebook cannot be held liable 6 COMPELLING CODE CODE COMPELLING EDERALIST 123, 132 (2010) [hereinafter Kosseff, Y ’ 230(c)(1); 230 (2018). OL However, many Democrats have begun to ar- have begun many Democrats However, 2 . L. & P 7 230(c)(1), 230(c)(2). ECH Pelosi Puts Tech on Notice with Warning of ‘New Era’ in Regulation Pelosi Puts Tech on Notice with Warning Jeff Kosseff, Defending Section 230: The Value of Intermediary Immu- Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 47 U.S.C. § 47 U.S.C. § §§ See See infra notes 15–28 text. and accompanying See Id. See See At the center of the “Big Tech” debate is a single, twenty- the “Big Tech” debate is a At the center of 2 3 4 5 6 7 M K aisle these calls for change come from, they are misguided. for change come from, they aisle these calls liable for holding large technology companies Advocates for of the immunity underestimate the value users’ speech gravely currently enjoy.these companies the Without it, we jeopardize the robustness of the internet industry and continued growth of ideas. of the online marketplace computer service” that protects “interactive six-word statute Yelp, from liability as Google, Facebook, and providers, such for user-generated content. [https://perma.cc/FC6C- /www.cruz.senate.gov/?p=press_release&id=4630 85JT] [hereinafter Sen. Cruz: Latest Twitter Bias Birnbaum, - (Apr. 12, 2019, 1:48 PM), https://thehill.com/policy/technology/438652-pelosi [https://perma.cc/ZDG8-UTHH]; warns-its-a-new-era-for-regulating-big-tech king Section 230 to Regu- Madeline Osburn, More Lawmakers Lean Toward Revo late Big Tech Companies, F \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown Seq: 3 15-FEB-21 11:00 2021] 2021] like companies media social including companies, technology for their liable be held cannot generally Facebook, and Twitter users’ speech. while a traditional newspaper can be held liable for the defama- while a traditional newspaper tory speech it publishes, 230]. defamatory post by one of it users.defamatory post by one of it as Facebook is As long by others (its users) and merely the host of content created the content, it is free and clear does not have a role in creating of liability. Communications Decency Act of 1996, states that “[n]o pro- Communications Decency Act computer service shall be treated vider or user of an interactive of any information provided by as the publisher or speaker provider,” even if the company another information content content. voluntarily screens for “objectionable” gue that tech companies should be held responsible for the held responsible should be tech companies gue that their plat- occurs on that and misinformation radicalization media is bi- that social claim many Republicans forms, while voices. conservative ased against scores Need for Big Tech Transparency - 2019/07/11/lawmakers-weigh-revoking-section-230-regulate-big-tech-compa ]; nies/ [https://perma.cc/HMQ4-BQYM tive computer service”). nity, 15 J. T not 521 F.3d 1157, 1168 (9th Cir. 2008) (holding that Section 230 immunity does C Y 42993-crn_106-2 Sheet No. 81 Side A No. 81 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 81 Side B 03/12/2021 06:20:48 R R M K C Y For 11 As a re- As 8 [Vol. 106:457 106:457 [Vol. , https://www.facebook. note 6, at 130; 47 U.S.C. TANDARDS supra S (May 16, 2019, 10:50 AM), https:// , supra note 6, at 130–31. ECODE : R OMMUNITY OX : C 10 CORNELL CORNELL LAW REVIEW ACEBOOK 230. . amend. I. Content moderation policies and decisions re- Content moderation policies However, Section 230 neither requires compa- However, Section 230 neither Together, they constructed Section 230 in an constructed Section 230 in Together, they ONST 14 13 9 Defending Section 230, meanwhile, hate speech is protected under the First speech is protected under meanwhile, hate U.S. C R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 391 (1992). 12 Kosseff, See Hate Speech, F See See 47 U.S.C. § See infra Part I. See Kosseff, Defending Section 230 In both its language and purpose, Section 230 is highly is highly 230 Section purpose, and language its In both Still standing today, Section 230 allows tech companies to Section 230 allows tech Still standing today, Recently, a staggering spectrum of lawmakers, from Ted Recently, a staggering spectrum 8 9 10 11 12 13 14 230(b) (“It is the policy of the United States . . . to promote the continued 230(b) (“It is the policy of the United Amendment. sult, the statute is responsible for the development and contin- development for the statute is responsible sult, the tech companies. of today’s ued survival 230 In drafting Section Represen - (D-Or.) (then, Ron Wyden the 1990s, Senator during set out to Cox (R-Cal.) Chris and Representative tative Wyden) its benefi- while promoting of the Internet the dark side address cial aspects. nies to regulate content nor punishes companies that choose nies to regulate content nor not to do so. - www.vox.com/recode/2019/5/16/18626779/ron-wyden-section-230-facebook regulations-neutrality [https://perma.cc/7E7K-56W5]. § disincentives for the development development of the Internet” while “remov[ing] technologies that empower parents to and utilization of blocking and filtering or inappropriate online material.”). restrict their children’s access to objectionable emphasized the valuable role Section 230 In a 2019 interview, Senator Wyden explaining, “My brief has never been for plays in the development of the Internet, the big guy. It’s always been about the startup, it’s always been about innovation, the inventor, and competition. is still my concern today.” That Emily Stewart, Ron Wyden Wrote the Law that Built the Internet. He Still Stands by It—and Everything It’s Brought with It, V apply to an interactive computer service provider that materially contributes to apply to an interactive computer service the “alleged unlawfulness” of the content). been Of course, someone who has may still pursue legal action against the harmed by content posted on a platform individual who shared that content. \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown 460 Seq: 4 15-FEB-21 providers. service computer interactive of protective 11:00 effort to simultaneously “spur unfettered growth of the In- “spur unfettered effort to simultaneously moderate ob- companies to voluntarily ternet” and encourage jectionable content. regulate content on their platforms in ways that the govern- on their platforms in ways regulate content may not. by the First Amendment, ment, constrained ] (last com/communitystandards/hate_speech [https://perma.cc/RXA3-75KB visited June 4, 2020) (listing hate speech under “Objectionable Content”). garding whether or not to take down content are entirely in the garding whether or not to take companies’ hands. criticized Section 230 as a Cruz to Elizabeth Warren, have upon undeserving tech com- problematic legal shield bestowed example, Facebook’s “Community Standards” prohibit hate “Community Standards” example, Facebook’s speech; 42993-crn_106-2 Sheet No. 81 Side B No. 81 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 82 Side A 03/12/2021 06:20:48 R 17 16 461 461 (Apr. (July How a (July 29, ECODE OLITICO : R , P EASON OX , R , V (Mar. 16, 2019, 10:00 AM), ECODE (June 19, 2019, 3:22 AM), https:// (June 19, 2019, 3:22 AM), https:// : R OX ORBES , V Section 230 Is the Internet’s First Amendment. Section 230 Is the Internet’s First Amendment. , F note 1; see also Eric Johnson, Silicon Valley’s Self- COMPELLING CODE CODE COMPELLING In 2019, House Speaker Nancy Pelosi called Section Section Pelosi called Nancy Speaker House In 2019, Elizabeth Nolan Brown, Sen. Amy Klobuchar, 2020 Presidential Candidate, Explains How She 15 See U.S. Senator Proposes Law to Remove Big Tech’s See, e.g., Zak Doffman, U.S. Senator Proposes Law to Remove See Birnbaum, supra M K 17 15 16 230 a “gift” to tech companies and stated that, “for the privilege privilege the that, “for stated and companies to tech a “gift” 230 on it. of responsibility a bigger sense there has to be of 230, removed.” that could be question that not out of the And it is - www.forbes.com/sites/zakdoffman/2019/06/19/facebook-and-google-under [https:/ threat-from-proposed-u-s-law-to-end-content-immunity/#55fcb69b385f /perma.cc/CL58-UN5K]. - https://www.vox.com/podcasts/2019/3/16/18267880/amy-klobuchar-2020 - democratic-president-candidate-antitrust-privacy-kara-swisher-decode-podcast sxsw [https://perma.cc/DQP2-K2QT] (interviewing Senator Klobuchar, who said how Section 230 “is something else that we should definitely look at as we look at we can create more accountability”). Regulating Days ‘Probably Should Be’ Over, Nancy Pelosi Says Regulating Days ‘Probably Should Be’ Legal Immunity Over User Content - 2019, 8:01 AM), https://reason.com/2019/07/29/section-230-is-the-internets first-amendment-now-both-republicans-and-democrats-want-to-take-it-away/ [https://perma.cc/T8AY-EHQA] (stating that Senator Amy Klobuchar has called Eric for holding social media platforms accountable for hate speech on their sites); Johnson, Would Regulate Big Tech if She Wins / 11, 2019, 6:20 PM), https://www.vox.com/podcasts/2019/4/11/18306834 - nancy-pelosi-speaker-house-tech-regulation-antitrust-230-immunity-kara ]; Cristiano Lima, swisher-decode-podcast [https://perma.cc/M78P-9KKH Is Splitting Washington Widening Political Rift Over Online Liability Speaker Pelosi is hardly the lone Democratic voice calling for voice the lone Democratic Pelosi is hardly Speaker of big tech.regulation primary presidential of the 2020 Ahead the future questioned candidates several Democratic election, (D-Minn.), including Senator Amy Klobuchar of the statute, \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown Seq: 5 15-FEB-21 11:00 2021] 2021] panies. - 9, 2019, 5:04 AM), https://www.politico.com/story/2019/07/09/online-indus ]. try-immunity-section-230-1552241 [https://perma.cc/4B48-9U3S Now Both Republicans and Democrats Want to Take It Away. Now Both Republicans and Democrats C Y 42993-crn_106-2 Sheet No. 82 Side A No. 82 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 82 Side B 03/12/2021 06:20:48 R M K C Y . J. T S OLITICO , P ALL Trump Ac- , W (Aug. 24, 2018, [Vol. 106:457 106:457 [Vol. 20 OLITICO , P Social Media Liability Law (May 6, 2019, 9:52 AM), https:// ILL , H , Wash. Post (Jan. 18, 2021, 8:00 AM), , Wash. Post (Jan. 18, 2021, 8:00 AM), Senator Ted Cruz (R-Tex.), who Ted Cruz (R-Tex.), Senator - (Nov. 13, 2019, 3:35 PM), https://rea 21 (Aug. 18, 2018), https://www.nytimes.com/ (Aug. 18, 2018), https://www.nytimes.com/ EASON note 17. IMES , R CORNELL CORNELL LAW REVIEW (Nov. 7, 2019), https://www.breitbart.com/politics/2019/ and the election’s ultimate victors, President President victors, ultimate the election’s and - Donald Trump signed an execu In May 2020, 18 (July 11, 2019, 6:56 PM), https://www.politico.com/story/ (July 11, 2019, 6:56 PM), https://www.politico.com/story/ 22 and Vice President Kamala Harris. Kamala Vice President and REITBART 19 Harris Says Her Administration Would Hold Social Emily Birnbaum, Harris Says Her Administration Would Trump Accuses Social Media Firms of Discrimination Emily Cochrane, Trump Accuses Social Media Firms of Sean Moran, Exclusive—Ted Is a ‘Growing Threat to Our Cruz: Big Tech OLITICO see also Jon Kyl, Why Conservatives Don’t Trust Facebook Trump Pushes Government Action Against ‘Terrible Bias’ at Social Media Trump Pushes Government Action Against See See See Joe Biden Has Officially Joined the Misguided Crusade Joined the Misguided Crusade Eric Boehm, Joe Biden Has Officially e Aim at Tech’s Legal Shield ke Aim at Tech’s Legal Cristiano Lima, Yang, Gabbard Ta Across the aisle, Republican politicians—includingthe aisle, Republican Across former 22 20 21 19 18 - son.com/2019/11/13/joe-biden-has-officially-joined-the-misguided-crusade ] (quoting Biden, who against-online-free-speech/ [https://perma.cc/GZH9-XK6B . . . [a]nd I, for one, think we should be said, “I just think it’s a little out of hand that they cannot be sued for knowingly . . . considering taking away the exception Rachel Lerman, promoting something that’s not true”); / https://www.washingtonpost.com/politics/2021/01/18/biden-section-230 [https://perma.cc/9U9J-BBGJ]. Is Likely to Be Reviewed Under Biden 2018/08/18/us/politics/trump-social-media-conservatives.html [https:// 2018/08/18/us/politics/trump-social-media-conservatives.html McGill, Cristiano Lima & Steven perma.cc/4JZM-CSDQ]; Margaret Harding Overly, Summit, P - (Aug. 20, 2019, 10:00 AM), https://www.wsj.com/articles/why-conservatives dont-trust-facebook-1156630960 [https://perma.cc/Z85X-NSCC] (finding, in a al- survey of conservative Facebook users, that conservatives believe Facebook’s gorithms are biased against their viewpoints). Against Conservatives, N.Y. T Democracy’, B Media Platforms ‘Accountable’ for ‘Hate’ Against Online Free Speech 2019/07/11/anti-tech-bill-sponsor-white-house-social-media-summit-1586902 2019/07/11/anti-tech-bill-sponsor-white-house-social-media-summit-1586902 [https://perma.cc/Q449-QJSK]; Stephanie Murray & Cristiano Lima, Millions of People’ cuses Social Media Giants of ‘Silencing 11/07/exclusive-ted-cruz-big-tech-is-a-growing-threat-to-our-democracy/ 11/07/exclusive-ted-cruz-big-tech-is-a-growing-threat-to-our-democracy/ - thehill.com/policy/technology/442261-harris-says-her-administration-would ] (noting that, during hold-social-media-platforms [https://perma.cc/G9LJ-3K8W then-Senator Kamala Harris (D-Cal.) the course of her presidential campaign, accountable for the hate infiltrating said, “We will hold social media platforms their platforms”); Brown, supra - 8:30 AM), https://www.politico.com/story/2018/08/24/donald-trump-social media-censorship-795381 [https://perma.cc/CL8Q-EZXT] (“President Donald tweet Trump accused social media platforms of ‘silencing millions of people’ in a deci- on Friday, again rebuking tech companies over their content moderation sions.”); - PM), https://www.politico.com/news/2019/11/14/yang (Nov. 14, 2019, 12:45 ] [https://perma.cc/LQ8S-ZEMY gabbard-take-aim-at-techs-legal-shield-070925 Decency Act to Yang’s plan to “amend the Communications (describing Andrew the 21st century—thatreflect the reality of tech companies are using tools to large any of the responsibility”). act as publishers without \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown 462 Seq: 6 15-FEB-21 11:00 Andrew Yang, Andrew President Donald J. Trump—have Donald J. President advocated for similarly tech. down on big cracking has been described as “one of the Senate’s loudest big tech Senate’s loudest “one of the described as has been bias, and censor- that “[b]ig tech’s power, critics,” has argued threat to our dangerous, and it is a growing ship is profoundly democracy.” Joe Biden Joe 42993-crn_106-2 Sheet No. 82 Side B No. 82 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 83 Side A 03/12/2021 06:20:48 R , , 24 it see See 27 463 463 supra , Although Justice and “futile,” 26 . (Aug. 27, 2020), https:// (May 29, 2020, 12:35 PM), OUND subparts II.C and III.C. ATCH F W infra ARKET (Oct. 16, 2020, 3:11 PM), https:// at 14. (May 28, 2020, 8:05 PM), https:// (May 28, 2020, 8:05 PM), https:// RONTIER , M F Id. LATE 28 “not enforceable,” ECODE see also Sen. Cruz: Latest Twitter Bias see also Sen. Cruz: , S 25 :R Malwarebytes, Inc., 141 S. Ct. 13. OX LECTRONIC COMPELLING CODE CODE COMPELLING Although some legal experts have called the experts have called some legal Although 23 - (June 2, 2020), https://www.nytimes.com/2020/06/02/tech IMES The Center for Democracy and Technology and voting rights organiza- The Center for Democracy and Technology / . (May 27, 2020, 4:39 AM), https://www.cnn.com/2020/05/26/tech US See generally Malwarebytes, Inc. v. Enigma Software Grp. USA, LLC, 141 Id. is Legally Unen- Shirin Ghaffary, Trump’s Executive Order on Social Media Attack on 230 Yet John Bowers, Trump’s Executive Order Is the Most Futile Exec. Order No. 13,925, 85 Fed. Reg. 34,079 (May 28, 2020). 85 Fed. Reg. 34,079 (May 28, Exec. Order No. 13,925, The order Platforms is Jon Swartz, Trump Executive Order to Punish Social-Media - (May 30, 2020, 9:00 AM), https://www.wired.com/story/opinion-trumps - Mike Godwin, Clarence Thomas Is Begging Someone to Sue Over Conserva M K IRED 28 25 26 27 23 24 - www.vox.com/recode/2020/5/28/21273878/trump-executive-order-twitter-so [https://perma.cc/7DTF- cial-media-section-230-free-speech-implications MW2F]. Ct. 13 (2020) (Thomas, J., statement respecting the denial of certiorari); S. Ct. 13 (2020) (Thomas, J., statement respecting the denial of certiorari); also tives’ Most-Hated Internet Law tions brought lawsuits challenging the order under the First Amendment. tions brought lawsuits challenging the forceable, Experts Say, V was a direct response to Twitter’s unprecedented decision to flag two of Donald to Twitter’s unprecedented decision was a direct response presidential election as mail-in ballots during the 2020 Trump’s tweets about about mail-in ballots.” alongside a link to “[g]et the facts “potentially misleading,” Fact Check for the First Time Brian Fung, Twitter Labeled Trump Tweets with a CNN: B Largely Toothless, Legal Experts Say Crackdown Violates Free Kate Conger, Lawsuit Says Trump’s Social Media Speech, N.Y. T W order “a half-baked effort that will have few legal effects,” have few legal that will half-baked effort order “a Thomas agreed with the Court’s decision, he encouraged the Court to reexamine Thomas agreed with the Court’s decision, he encouraged the Court to reexamine the statute in “an appropriate case.” - slate.com/technology/2020/10/clarence-thomas-section-230-cda-content-mod - eration.html [https://perma.cc/Z3SC-YYZT] (analyzing Justice Thomas’s state ment). Court declined to hear a case regarding the In October 2020, the Supreme proper scope of Section 230. represents a growing tide of frustration with and opposition to with and opposition tide of frustration a growing represents 230.Section has urged the Justice Clarence Thomas Even 230, arguing to reconsider the scope of Section Supreme Court confer far greater interpreted the provision to that courts have it requires. immunity than ].[https://perma.cc/BC9Z-JXP6 twitter-trump-fact-check/index.html For fur - see ther discussion of the executive order, ]; [https://perma.cc/9X3D-BXSN “likely unconstitutional,” \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown Seq: 7 15-FEB-21 11:00 2021] 2021] on and calling censorship” “online to prevent order seeking tive Section back and scale of the scope clarify FTC to FCC and the 230 protection. - https://www.marketwatch.com/story/trump-executive-order-to-punish-social [https:// media-platforms-is-largely-toothless-legal-experts-say-2020-05-28 perma.cc/4F3C-33JX]. executive-order-is-the-most-futile-attack-on-230-yet/ [https://perma.cc/YGA5- executive-order-is-the-most-futile-attack-on-230-yet/ WNPT]. - www.eff.org/press/releases/voter-advocacy-orgs-sue-trump-administration-ex [https://perma.cc/D6VZ-KUC]. ecutive-order-threatening-social-media nology/trump-twitter-free-speech-lawsuit.html [https://perma.cc/QAH2-CWVL]; nology/trump-twitter-free-speech-lawsuit.html for Executive Order Threatening Voter Advocacy Orgs Sue Trump Administration Social Media Censorship, E note 1. C Y 42993-crn_106-2 Sheet No. 83 Side A No. 83 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 83 Side B 03/12/2021 06:20:48 , M K C Y OLICY Mass P TATE OF S ’ see also S O’Rourke (Aug. 16, HE ILL UBLIC ., T P , H [Vol. 106:457 106:457 [Vol. ISINFORMATION AND AUM ET AL (Apr. 28, 2019), https:// (Apr. 28, 2019), https:// #14: M A. B IMES EPORT Isolation and Social Media Com- Isolation and Social NDERSTANDING THE Social Media and Fake News in the U ATTHEW –– R –– . J. (Aug. 5, 2019, 5:44 PM), https:// . J. (Aug. 5, 2019, 5:44 T , N.Y. T S ALL (Sept. 23, 2020), https://news.northwest- URVEY Social Media Contributes to Misinformation , W OW N . 211, 212 (2017) (“Recent evidence [(as of Spring . 211, 212 (2017) (“Recent evidence [(as ONSORTIUM FOR (2020), http://www.kateto.net/covid19/COVID19 ERSP (Dec. 10, 2020, 6:00 AM), https://abcnews.go.com/ (Dec. 10, 2020, 6:00 AM), https://abcnews.go.com/ . P CORNELL CORNELL LAW REVIEW COVID-19 S TATES EWS CON S - that large tech com have all cued frustrations TATE , COVID C ORTHWESTERN 30 and social media’s role in the spread of misinfor - in the spread media’s role and social CROSS 29 A Daniela Hernandez & Parmy Olson, Daniela Hernandez : A 50-S Hunt Allcott & Matthew Gentzkow, - (Nov. 3, 2020), https://www.statista.com/statistics/811487/number CCEPTANCE A See See ATION Given the sheer number of lawmakers who have criticized criticized have who lawmakers of number the sheer Given N 30 29 ACCINE TATISTICA REFERENCES mation surrounding events like the 2016 and 2020 elections 2016 and 2020 like the surrounding events mation and COVID-19 2016 Election, 31 J. E - ern.edu/stories/2020/09/social-media-contributes-to-misinformation-about covid-19/ [https://perma.cc/3S3G-28CZ]; M Shootings Have Become a Sickening Meme Shootings Have Become - www.wsj.com/articles/isolation-and-social-media-combine-to-radicalize-violent ]; Charlie Warzel, [https://perma.cc/W7KR-MSYH offenders-11565041473 Number of Mass Shootings in the United States Between 1982 and February 2020 Number of Mass Shootings in the United S - www.nytimes.com/2019/04/28/opinion/poway-synagogue-shooting [https://perma.cc/2R6E-HECT]; meme.html?searchResultPosition=2 2017)] shows that: 1) 62 percent of US adults get news on social media; 2) the 2017)] shows that: 1) 62 percent of US more widely shared on Facebook than the most popular fake news stories were 3) many people who see fake news stories most popular mainstream news stories; most discussed fake news stories tended report that they believe them; and 4) the (internal citations omitted)); Cathe- to favor Donald Trump over Hillary Clinton.” on Social Media Amid COVID ‘a rine Sanz, Normalization of Vaccine Misinformation Huge Problem’, ABC N V P \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown 464 Seq: 8 15-FEB-21 kind some companies, tech for protections strong existing the 11:00 dismantle) completely amend (or even action to of legislative inevitable. 230 may seem Section speech presence of hate The and mass radicalization uptick in online the frightening online, shootings, THE - 2019, 2:28 PM), https://thehill.com/policy/technology/457729-orourke-pro [https://perma.cc/ poses-holding-tech-platforms-accountable-for-hate-speech of a mass shooting in his hometown of E3XL-BY8T] (explaining that, in the wake Senator Beto O’Rourke (D-Tex.) pro- El Paso, Texas, then-presidential candidate for platforms that do not make an effort posed “remov[ing] Section 230 protections hate speech”). to create and uphold policies against ] (showing an in- of-mass-shootings-in-the-us/ [https://perma.cc/FE3W-BPTZ 1982).crease in recorded mass shootings since - For an example of an anti-Sec the incidence of online radicalization and tion-230 effort concerned primarily with one), see Emily Birnbaum, hate speech (albeit a likely unconstitutional Proposes Holding Tech Platforms Accountable for Hate Speech Proposes Holding Tech Platforms Accountable %20CONSORTIUM%20REPORT%2014%20MISINFO%20SEP%202020.pdf %20CONSORTIUM%20REPORT%2014%20MISINFO%20SEP%202020.pdf [https://perma.cc/TWK4-HRCP]. Health/normalization-vaccine-misinformation-social-media-amid-covid-huge/ Health/normalization-vaccine-misinformation-social-media-amid-covid-huge/ ].[https://perma.cc/AJ2Y-R6R3 story?id=74585753 A recent national survey to concluded that people who get their news from social media “are more likely - believe misinformation about coronavirus conspiracies, risk factors and prevent ative treatments.” Stephanie Kulke, About COVID-19, N panies, which seem to run the world, appear to be beyond the seem to run the world, appear panies, which reach of the law. bine to Radicalize Violent Offenders bine to Radicalize Violent 42993-crn_106-2 Sheet No. 83 Side B No. 83 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 84 Side A 03/12/2021 06:20:48 R R R R R OX US- 465 465 , V //H LECTRONIC (Apr. 23, and has OX Although , E ACKING 34 , V 33 FOSTA marks FOSTA A New Law Intended 31 - Concerns regard note 32 (“Some sex work- 37 supra “The law creates an ex- creates an “The law 32 FOSTA: A Hostile Law with a Human FOSTA: A Hostile Law with a Human Some, including the Electronic Some, including The Complicated Story of FOSTA and Sec- The Complicated Story of FOSTA and Id. 36 . 279, 280–84 (2019). EV note 32, at 2175 (arguing that FOSTA “egregiously” note 32, at 2175 (arguing that FOSTA FOSTA-SESTA (2020), https://hackinghustling.org/ note 31, at 280–83; Aja Romano, COMPELLING CODE CODE COMPELLING note 32. others, including those in the sex worker others, including . 2171, 2189–90 (2019) (explaining that “Backpage.com . L. R 35 EV supra supra - (Mar. 20, 2018), https://www.thecut.com/2018/03/sesta MEND MPACT OF I UT L. R A . (Feb. 27, 2018), https://www.eff.org/deeplinks/2018/02/ supra note 32. HE IRST : T OUND Romano, Goldman, ORDHAM F see also Lura Chamberlain, Note, RASED Joe Mullin, House Vote on FOSTA Is a Win for Censorship Stewart, Section 230, and Rand Paul (R-Ky.) Only Senators Wyden, who cowrote See Anti-Sex See, e.g., Amanda Arnold, Here’s Whats Wrong with the So-Called Pub. L. No. 115-164, 132 Stat. 1253 (2018).See Pub. L. No. 115-164, 132 Stat. 1253 For a full explanation of See Indeed, Congress has already taken action to amend Sec- to amend action taken has already Congress Indeed, , E M K 37 33 34 35 36 31 32 RONTIER / 2018, 12:20 PM) https://www.vox.com/policy-and-politics/2018/4/23 [https://perma.cc/WHT5- 17237640/fosta-sesta-section-230-internet-freedom BDJV]; Cost, 87 F TLING ] (noting that anti-sex-trafficking-bill-fosta.html [https://perma.cc/78W9-WM3M trafficking victims have spoken out against many sex workers and advocates for FOSTA); Chamberlain, supra missed the mark because it has not led to a decrease in sex trafficking and has missed the mark because it has not led created difficulties for law enforcement); Stewart, ers say it will actually put them in further danger and push illicit activity into even ers say it will actually put them in further danger and push illicit activity into deeper corners of the internet, and free internet proponents worry that platforms might censor or pull content preemptively just to avoid risk.”). For a comprehen- sive study of the effects of FOSTA on sex workers, see generally H FOSTA was met with little contention in Congress FOSTA was met ing Threatens the Future of the Internet As We Know It to Curb Sex Trafficking Threatens the Future of the Internet voted against the bill in the Senate. Trafficking Bill, C FOSTA’s history, see Eric Goldman, tion 230, 17 F tion house-vote-fosta-win-censorship [https://perma.cc/8RTS-FJAB] (“Facing huge ing the potential chilling effect of the law immediately became a chilling effect of the law immediately ing the potential / wp-content/uploads/2020/01/HackingHustling-Erased.pdf [https://perma.cc 69BE-MU49]. community, have expressed concern that the law will actually expressed concern that the community, have less safe. make sex workers an effort to combat sex trafficking online, particularly on online particularly trafficking online, to combat sex an effort sites like Backpage.com. personals had long been viewed as an internet scourge by many anti-trafficking and anti- had long been viewed as an internet the website’s complicity, if not active role, sex-work advocates alike, who criticized advertisements, some of which featured in operating as a clearinghouse for sexual minors and trafficked adults”). F / (July 2, 2018, 1:08 PM), https://www.vox.com/culture/2018/4/13/17172762 [https://perma.cc/H4SR-YQ9Z]; fosta-sesta-backpage-230-internet-freedom Is Here Emily Stewart, The Next Big Battle over Internet Freedom \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown Seq: 9 15-FEB-21 11:00 2021] 2021] to Fight and Victims States Allow the enacting 230 by tion (FOSTA). Act of 2017 Sex Trafficking Online ception to Section 230 that means platforms would be respon- would that means platforms to Section 230 ception or to sex trafficking content related third-party sible for or facilitates prostitution.’”conduct that ‘promotes many supporters, Frontier Foundation, have called FOSTA “a win for censorship” have called FOSTA “a Frontier Foundation, to fight sex traffickers.” that “does nothing C Y 42993-crn_106-2 Sheet No. 84 Side A No. 84 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 84 Side B 03/12/2021 06:20:48 R R R R M K C Y (Apr. 3, note 21 38 . (Aug. 8, OV EV .G supra R According to [Vol. 106:457 106:457 [Vol. ENATE The Myth of Social 42 .S , NPR (Mar. 23, 2018, OURNALISM https://fee.org/articles/ AWLEY . J , H (June 19, 2019), https:// OLUM OV note 21 (“President Donald Trump , C .G supra ENATE ]. . (Dec. 26, 2020), .S This Note examines one proposal This Note examines Senator Josh Hawley (R-Mo.) pro- Senator Josh 39 DUC note 21 (“‘Social Media is totally discriminating see also Merrit Kennedy, Craigslist Shuts Down 40 AWLEY . E CON , H E CORNELL CORNELL LAW REVIEW FOR . OUND aiming to eradicate what several Republican politi- what several Republican aiming to eradicate 41 supra notes 15–23, 28 and accompanying text. Senator Hawley Introduces Legislation to Amend Section 230 Immunity Senator Hawley Introduces Legislation See S. 1914, 116th Cong. (2019). Id.; See, e.g., Cochrane, supra What Is Section 230 and Why Do Trump and His Allies Want Hannah Cox, What Is Section 230 and Why Do Trump Lawmakers’ appetite for weakening Section 230 was hardly 230 was weakening Section appetite for Lawmakers’ 39 40 41 42 38 (including statements by Donald Trump (“We have terrible bias. We have censor- ship like no one has any understanding, nobody can believe.”) and Senator gov- Hawley (“Google, Facebook, Twitter, they’ve gotten these special deals from ernment.giveaway from government. They’ve gotten a special They’re treated unlike anybody else . . . . to keep their special deal here’s the bargain. If they want - They have to quit discriminating against conservatives.”) on the alleged anticon servative bias online); Murray & Lima, accused social media platforms of ‘silencing millions of people’ in a tweet on accused social media platforms of ‘silencing millions of people’ in a tweet Friday, again rebuking tech companies over their content moderation decisions.”); Senator Hawley Calls for Third-Party Audit of Twitter https://www.cjr.org/the_media_today/platform-bias.php [https:// 2019), https://www.cjr.org/the_media_today/platform-bias.php the White House “circulat[ed] drafts of a perma.cc/E6G5-ZEYX] (reporting that would address allegations of anti-con- proposed executive order [in 2019] that servative bias by social media companies”); McGill, Lima & Overly, for Big Tech Companies Mr. Trump wrote on Twitter, saying that against Republican/Conservative voices,’ ‘censorship is a very dangerous thing.’”); Mathew Ingram, to Die Media Anti-Conservative Bias Refuses to Repeal It?, F new liabilities, the law will undoubtedly lead to platforms policing more user law will undoubtedly lead to platforms new liabilities, the speech.”). \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown Seq: 10 466 15-FEB-21 11:00 - Craig like companies internet to FOSTA, in response reality: - not “be their websites of sections down took and Reddit slist but rather prostitution, . . . promoted sections cause these else that someone against the possibility policing them because task.” impossible services was an illegal might advertise what-is-section-230-and-why-do-trump-and-his-allies-want-to-repeal-it/ what-is-section-230-and-why-do-trump-and-his-allies-want-to-repeal-it/ [https://perma.cc/2PD6-TSEB]; Bill on Trafficking Personals Section After Congress Passes / 3:52 PM), https://www.npr.org/sections/thetwo-way/2018/03/23/596460672 craigslist-shuts-down-personals-section-after-congress-passes-bill-on-traffickin (“‘Any[https://perma.cc/H4AT-DVGR] tool or service can be misused,’ Craigslist said. so we ‘We can’t take such risk without jeopardizing all our other services, offline.are regretfully taking craigslist personals them Hopefully we can bring back some day.’”). - www.hawley.senate.gov/senator-hawley-introduces-legislation-amend-section ] [hereinafter 230-immunity-big-tech-companies [https://perma.cc/QM99-JLDC Senator Hawley Introduces Legislation satiated by the passage of FOSTA. by the passage satiated of big For many, regulation way to go. tech has a long posed The Ending Support for Internet Censorship Act on June Support for Internet Censorship posed The Ending 19, 2019, cians have called “anti-conservative bias” allegedly embedded “anti-conservative bias” allegedly cians have called content moderation policies. in tech companies’ to cut back on Section 230 immunity: The Ending Support for Section 230 immunity: The Ending to cut back on Act. Internet Censorship 42993-crn_106-2 Sheet No. 84 Side B No. 84 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 85 Side A 03/12/2021 06:20:48 R R WIT- 467 467 politically (May 3, 2019, WITTER note 41. note 41 (emphasis added). (Sept. 11, 2019), https:// OV supra supra Josh Hawley Wants to Stop Internet .G , , (June 19, 2019, 5:42 PM), https:// LATE ENATE .S The Ending Support for Internet Support The Ending , S 43 AWLEY COMPELLING CODE CODE COMPELLING 44 Senator Hawley Introduces Legislation Senator Hawley Introduces Legislation This Note argues that requiring tech companies to main- that requiring tech companies This Note argues (Aug. 18, 2018, 7:23 AM), https://twitter.com/realDonaldTrump/status/ (Aug. 18, 2018, 7:23 AM), https://twitter.com/realDonaldTrump/status/ M K 43 44 neutral.” - slate.com/technology/2019/06/josh-hawley-section-230-cda-internet-speech ] (“Hawley believes [the alleged conservatives.html [https://perma.cc/2S8M-JLVS nothing less than federal legislation can anticonservative bias] is so rampant that T end it.”); see also Donald J. Trump (@realDonaldTrump), TER 1030777074959757313 [https://perma.cc/YKA6-AEZW] (“Social Media is totally discriminating against Republican/Conservative voices. Speaking loudly and clearly for the Trump Administration, we won’t let that happen. They are closing doing down the opinions of many people on the RIGHT, while at the same time nothing to othersFalse . . .”). Censorship Act is currently one of the most concrete and far- most concrete one of the Act is currently Censorship immunity. Section 230 efforts to uproot reaching Specifically, re- big tech companies the immunity removes the “legislation an external submit to unless they Section 230 ceive under evidence that their by clear and convincing audit that proves are content-removal practices algorithms and - www.hawley.senate.gov/senators-hawley-cruz-cramer-and-braun-blast ] [hereinafter facebook-censoring-pro-life-content [https://perma.cc/E6ET-RK54 others, “sent a Censoring Pro-Life Content] (explaining that Senator Hawley, with criticizing [Facebook’s] . . . censorship of letter to Facebook CEO Mark Zuckerberg [a] pro-life organization”); Mark Joseph Stern, Censorship by Censoring the Internet - 2019), https://www.hawley.senate.gov/senator-hawley-calls-third-party-audit ] (accusing Twitter of “repeatedly tar- twitter [https://perma.cc/D7B4-ZRWK suspended an “account affiliated with [a] get[ing] pro-life organizations” after it Braun Blast Facebook for pro-life film”); Senators Hawley, Cruz, Cramer, and Censoring Pro-Life Content, H \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown Seq: 11 15-FEB-21 11:00 2021] 2021] shows that of evidence list growing is “a there Hawley, Senator - view to censor decisions editorial making tech companies big disagree with.” points they tain “politically neutral” content moderation algorithms and neutral” content moderation tain “politically Amendment. under the First practices is unconstitutional Part its history, overview of Section 230, including I provides a brief and enduring significance.substance, purpose, - Part II exam Support for and implications of the Ending ines the language Internet Censorship Act.constitutionality Part III analyzes the imposition of a political neutral- of the bill, arguing first that its content moderation pol- ity requirement on big tech companies’ to compelled speech, and second icies and algorithms amounts the applicable standard of strict that the bill cannot survive scrutiny. Part III is followed by a Conclusion. https://twitter.com/realdonaldtrump/status/1124447302544965 6:55 PM), https://twitter.com/realdonaldtrump/status/1124447302544965 ] (“I am continuing to monitor the 634?lang=en [https://perma.cc/3JNA-CM2B censorship of AMERICAN CITIZENS on social media platforms. This is the United States of America—andhave what’s known as FREEDOM OF SPEECH! we We are T monitoring and watching, closely!!”); Donald J. Trump (@realDonaldTrump), C Y 42993-crn_106-2 Sheet No. 85 Side A No. 85 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 85 Side B 03/12/2021 06:20:48 R , M K 45 C Y . J. , 86 UL Section . (Jan. 23, ., https:// , 20 T , CNET (Oct. EV . R OUND Jamie Condliffe, [Vol. 106:457 106:457 [Vol. F ECH See 230 230 RONTIER , MIT T . (Feb. 24, 2009, 5:33 PM), F note 48 (“Indeed, [the (“Indeed, supra note 48 ECH ECTION : T each week. S LECTRONIC LATE one provision has stood the one provision , E As of January 2018, Americans spend As of January 2018, Americans spend 49 I ASSING The provision was included in the The provision : P AOL May Offer Unlimited Net Access 50 - than thirty min spent less Americans see also Citron & Wittes, 46 REQUEL CORNELL CORNELL LAW REVIEW P . 1, 1–2 (2017); see also Danielle Keats Citron & Benjamin HE 230. T ROP 47 . 401, 404 (2017) (calling the CDA a “broad attack on sexually . 401, 404 (2017) (calling the CDA a . P EV kerberg, Creator of Facebook Mary Bellis, Biography of Mark Zuc - . (June 19, 2019), https://www.thoughtco.com/mark-zuckerberg-bi Farhad Manjoo, Jurassic Web, S O NTELL Although much of the CDA was struck down by the of the CDA was struck down Although much L. R C : Denying Bad Samaritans § 230 Immunity The Internet Will Not Break: Denying Bad Samaritans § Reno v. ACLU, 521 U.S. 844, 882 (1997) (holding that “the CDA places an Reno v. ACLU, 521 U.S. 844, 882 (1997) 47 U.S.C. § See See id. (citing Jeff Pelline, Rulings Eric Goldman, The Ten Most Important Section 230 See 48 In 1996, Mark Zuckerberg was twelve years old and just years old and was twelve Mark Zuckerberg In 1996, that accompa- on the rise, the dangers With the Internet . & I 49 50 46 47 48 45 ORDHAM ECH HOUGHT The Average American Spends 24 Hours a Week Online The Average American Spends 24 Hours - https://slate.com/technology/2009/02/the-unrecognizable-internet-of ]. 1996.html [https://perma.cc/RF4N-ZZ5Q ]. ography-1991135 [https://perma.cc/H7UH-6MPR T - 4, 1996, 2:00 PM), https://www.cnet.com/news/aol-may-offer-unlimited-net-ac [https://perma.cc/8HVP-F7UM]). cess/ online an average of about twenty-four hours not unacceptably heavy burden on protected speech, and that the defenses do constitute the sort of ‘narrow tailoring’ that will save an otherwise patently invalid unconstitutional provision”); 230 of the Communications Decency Act CDA] strayed so far from libertarian values that the U.S. Supreme Court in a CDA] strayed so far from libertarian values that the U.S. Supreme Court landmark First Amendment case struck down several of its provisions.”); - 2018), https://www.technologyreview.com/f/610045/the-average-american ]. spends-24-hours-a-week-online/ [https://perma.cc/6DQ4-KWQC www.eff.org/issues/cda230 [https://perma.cc/4CRE-C6TK] (last visited June 4, 2020) [hereinafter EFF] (noting that the Supreme Court struck down the “anti-free speech provisions” of the CDA after they were met with outrage from the Internet community). explicit material”). Act of The CDA was passed as part of the Telecommunications 1996. Pub. L. No. 104-104, 110 Stat. 56 (1996). The Internet was dominated by companies like AOL, Com- like by companies was dominated The Internet and Prodigy. puServe, \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown Seq: 12 468 15-FEB-21 11:00 utes on the web each month and still paid for Internet access each month and still paid utes on the web by the hour. starting to use programming computers at his middle school. at his middle computers to use programming starting came to light.nied it quickly to In Congress’s first attempt Decency it enacted the Communications regulate the Internet, online pornogra- in order to criminalize Act (CDA), primarily phy. T CDA in order to address what scholar and Section 230 expert CDA in order to address what goals” of innovation and volun- Jeff Kosseff has called the “twin F Wittes, Supreme Court within a year, Supreme Court test of time: Section 230. test of time: Section 42993-crn_106-2 Sheet No. 85 Side B No. 85 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 86 Side A 03/12/2021 06:20:48 R R R At 469 469 . 1, 8 51 EV YouTube . L. R (Dec. 1, 2019), ECH note 49 (claiming EWS from liability for from liability for . & T supra 55 CI 230(f)(2). This definition § . S , CBS N 54 Id. OLUM supra note 51, at 3, 9–10 (stating note 6, at 130. , 18 C supra Gradual Erosion, note 48, at 2; see also EFF, COMPELLING CODE CODE COMPELLING Though only twenty-six words, the provi- Though only twenty-six 56 230(a)(3). Defending Section 230, In fact, Congress recognized that the “Internet and “Internet and that the Congress recognized In fact, see also Kosseff, 230(c)(1). The statute carves out several exceptions, including for 230(b)(1). Section 230 has been called “the most important law Section 230 has been called § § 52

57 and explicitly expressed its intention “to promote the expressed its intention “to and explicitly See Goldman, supra Kosseff, 47 U.S.C. § Id. service” as “any information ser- The statute defines “interactive computer Id. The Gradual Erosion of the Law that Shaped the Internet: Jeff Kosseff, The Gradual Erosion of the Law that In order to achieve those policy goals, Section 230 immu- those policy goals, Section In order to achieve 53 230(e); §

M K 57 52 53 54 55 56 51 ]. (2016) [hereinafter Kosseff, Gradual Erosion other interactive computer services offer a forum for a true offer a forum services computer other interactive for cul- opportunities unique of political discourse, diversity activ- for intellectual myriad avenues and tural development, ity,” - https://www.cbsnews.com/news/youtube-ceo-susan-wojcicki-and-the-debate ] over-section-230-60-minutes-2019-12-01/ [https://perma.cc/LB96-J6WM (“‘[Section 230 has] basically enabled the internet as we know it,’ [YouTube CEO said.Wojcicki Susan] ‘It’s enabled us to have people upload content, not have every single comment be reviewed, not every single video be reviewed. And so, it of has enabled new types of communication, new types of community, new types content that we just wouldn’t have had beforehand.’”). the same). of that Section 230 is “one of the most valuable tools for protecting freedom expression and innovation on the Internet”); Brit McCandless Farmer, CEO Susan Wojcicki and the Debate over Section 230 vice, system, or access software provider that provides or enables computer ac- vice, system, or access software provider server, including specifically a service or cess by multiple users to a computer and such systems operated or services system that provides access to the Internet offered by libraries or educational institutions.” property law, the Electronic Com- violations of federal criminal law, intellectual after FOSTA, certain sex trafficking laws. munications Privacy Act of 1986, and, Id. Section 230’s Evolution over Two Decades sion provides the foundation for the Internet as we know it sion provides the foundation today. \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown Seq: 13 15-FEB-21 11:00 2021] 2021] tech companies. part of on the moderation content tary content provided by others.content provided Section 230’s “safe Specifically, or user of an inter- states that “[n]o provider harbor” provision the publisher or service shall be treated as active computer information information provided by another speaker of any content provider.” nizes interactive computer service providers nizes interactive continued development of the Internet.” continued development the same time that it sought to address online pornography, pornography, online address to it sought that same time the of the In- growth to “spur unfettered also aimed Congress ternet.” encompasses large Internet companies, such as Facebook and Google, as well as encompasses large Internet companies, who host reader comments on their sites. news organizations and small bloggers C Y 42993-crn_106-2 Sheet No. 86 Side A No. 86 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 86 Side B 03/12/2021 06:20:48 R R R R R M K C Y supra supra pro- , 61 60 In other In other 62 [Vol. 106:457 106:457 [Vol. 63 Gradual Erosion Gradual Erosion, - At the time, Com supra note 48, at 403 (“Be- 65 note 51, at 4 (“To understand the (June 21, 2019, 1:02 PM), https:// (June 21, 2019, 1:02 PM), https:// “the internet’s most important important most internet’s “the / . (Sept. 7, 2017), https://www.eff.org / . (Oct. 29, 2020), https://www.eff.org see also Kosseff, 58 supra note 49. supra ERGE Congress Fails to Ask Tech CEOs the Hard OUND OUND , V F 230(c)(2) prevents interactive computer service 230(c)(2) prevents interactive computer F . 659, 660–61 (2012). EV RONTIER RONTIER CORNELL CORNELL LAW REVIEW L. R see also EFF, F 230(c)(2)(A); Citron & Wittes, F (Sept. 12, 2013), https://www.theatlantic.com/business/ (Sept. 12, 2013), https://www.theatlantic.com/business/ Gradual Erosion, RVINE 230(c)(2)(A) (2018); TLANTIC LECTRONIC LECTRONIC Kosseff, 47 U.S.C. § Stop SESTA: Congress Doesn’t Understand How Section Aaron Mackey, Stop SESTA: Congress Doesn’t Understand The first case involved a prominent early interactive involved a prominent early The first case and “the law that gave us the modern internet.” the modern gave us that “the law and See See Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135, 137 (S.D.N.Y. 1991). Derek Khanna, The Law that Gave Us the Modern Internet—and- the Cam See 47 U.S.C. § Elliot Harmon & Joe Mullin, Exists and How Adi Robertson, Why the Internet’s Most Important Law 64 59 Two important court decisions in the years leading up to court decisions in the years Two important Additionally, under Section 230’s “Good Samaritan” 230’s “Good under Section Additionally, 63 64 65 60 61 62 58 59 - archive/2013/09/the-law-that-gave-us-the-modern-internet-and-the-campaign ] (capitalization altered). to-kill-it/279588/ [https://perma.cc/459J-QYZ2 - deeplinks/2017/09/stop-sesta-congress-doesnt-understand-how-section-230 ]. works [https://perma.cc/22U9-SBN4 deeplinks/2020/10/congress-fails-ask-tech-ceos-hard-questions [https:// deeplinks/2020/10/congress-fails-ask-tech-ceos-hard-questions perma.cc/5JQE-QT3V]; note 51, at 4 (“Congress initially passed the statute in an effort to encourage note 51, at 4 (“Congress initially passed the statute in an effort to encourage providers to prevent objectionable user-generated content.”). paign to Kill It, A they make a good faith effort to edit or providers from losing their immunity when delete content they deem objectionable). For a thorough explanation of Section 47 U.S.C. 230(c)(2), see Eric Goldman, Online User Account Termination and 230(c)(2), 2 U.C. I § cause regulators could not keep up with the volume of noxious material online, the participation of private actors was essential.”); Kosseff, cases origins of Section 230, it is necessary to review [the] two Internet liability decided in the years before Section 230’s enactment [that] . . . prompted Congress to set the boundaries for Internet service provider liability.”). Questions, E People Are Still Getting It Wrong 230 Works, E note 51, at 9 (explaining that § puServe made available to its paid subscribers a variety of puServe made available to its topics.forums dedicated to different forum, which One such - www.theverge.com/2019/6/21/18700605/section-230-internet-law-twenty-six [https://perma.cc/ZAD6- words-that-created-the-internet-jeff-kosseff-interview EBC5] (interviewing Jeff Kosseff). \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown Seq: 14 470 15-FEB-21 11:00 protecting free speech online,” speech free protecting vision, interactive computer service providers remain immu- providers remain service interactive computer vision, access good faith “restrict and in if they voluntarily nized even consider “objectionable,” that they of material” to or availability protected.” is constitutionally material even if “such Section 230’s enactment further illuminate the statute’s pur- further illuminate Section 230’s enactment pose. words, engaging in content moderation does not strip an inter- in content moderation does words, engaging service provider of its immunity.active computer The addition online platforms to was intended to encourage of this provision with- sites for objectionable content voluntarily police their own for failing to do so flawlessly. out risking liability computer service provider, CompuServe. computer service law,” 42993-crn_106-2 Sheet No. 86 Side B No. 86 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 87 Side A 03/12/2021 06:20:48 471 471 For 73 However, a 72 67 Stratton Oakmont, —not a distributor— 66 Smith, 361 U.S. at 152–53). The district court explained 70 —similar newspa- to a traditional Under distributor liability, which is Under distributor 68 COMPELLING CODE CODE COMPELLING at 137–38. at 140–41. at 141. Without such a rule, “[e]very bookseller would be a rule, “[e]very bookseller Without such at 140 (“CompuServe has no more editorial control over such a publica- Accordingly, in the absence of evidence that Accordingly, in the absence 69 Id. See id. at 139. Id. Id. at 139; see also Smith v. California, 361 U.S. 147, 152–53 (1959) Cubby, 776 F. Supp. at 139 (quoting Id. Id. No. 31063/94, 1995 WL 323710, at *4 (N.Y. Sup. Ct. May 24, 1995). 71 Four years later, a New York state court handed down an Four years later, a New York In order to succeed on its claim that CompuServe was lia- CompuServe its claim that to succeed on In order M K 67 68 69 70 71 72 73 66 of defamatory statements posted on one of those boards. of defamatory statements posted (invalidating an ordinance that made booksellers liable for obscene content in (invalidating an ordinance that made booksellers liable for obscene content their stores whether or not the seller was aware of that content). \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown Seq: 15 15-FEB-21 11:00 2021] 2021] CompuServe, from independent a company by managed was USA. Rumorville called daily newsletter a published 1991, a In to hold seeking sued CompuServe, of the newsletter competitor pub- statements allegedly defamatory liable for the company newsletter. the Rumorville lished in federal district court in New York held that CompuServe, which court in New York held that CompuServe, federal district of the newsletter, control over the content exercised no editorial . was merely a distributor traditionally applied to booksellers and newsstands, the “dis- to booksellers and newsstands, traditionally applied of a publication knowledge of the contents tributor must have that publica- can be imposed for distributing before liability tion.” , the court held that Prodigy, another Inc. v. Prodigy Services Co., the court held that Prodigy, another provider that provided bulletin interactive computer service a publisher boards to its subscribers, was influential decision, which, in combination with Cubby, influential decision, which, 230.prompted the enactment of Section In ble for defamation, the competitor was required to show that the competitor was required ble for defamation, a publisher CompuServe was per—of in the newsletter. the content contained “CompuServe knew or had reason to know of Rumorville’s con- “CompuServe knew or had reason be held liable for the allegedly tents,” CompuServe could not by Rumorville. defamatory statements published placed under an obligation to make himself aware of the con- placed under an obligation to tents of every book in his shop.” this court, the key difference between Prodigy and CompuServe this court, the key difference control over the content on was that Prodigy exercised editorial that, much like a bookseller, CompuServe could not be ex- that, much like a bookseller, all of the content that it distrib- pected to have knowledge of utes. tion than does a public library, book store, or newsstand, and it would be no more tion than does a public library, book store, or newsstand, and it would be no feasible for CompuServe to examine every publication it carries for potentially defamatory statements than it would be for any other distributor to do so.”). C Y 42993-crn_106-2 Sheet No. 87 Side A No. 87 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 87 Side B 03/12/2021 06:20:48 R R M K C Y Stratton Stratton Specifically, Specifically, and [Vol. 106:457 106:457 [Vol. 77 74 Recognizing this 76 UPPORT FOR CT S A NDING E II note 51, at 6. ENSORSHIP C supra OOK AT THE L NTERNET CORNELL CORNELL LAW REVIEW I Given the profound importance of the short Given the profound importance EPTH 78 -D N Gradual Erosion, I 75 N A (internal citations omitted). 230 to remove the disincentives to selfregulation created by the § Senator Hawley’s Political Neutrality Requirement Senator Hawley’s Political Neutrality Id. Id. Kosseff, Zeran v. Am. Online, Inc., 129 F.3d 327, 331 (4th Cir. 1997) (“Congress See supra notes 15–23 text. and accompanying Within months of taking office as a Missouri Senator in Within months of taking office as a Missouri Senator in Taken together, the decisions in Cubby Taken together, its enactment, Section 230 Today, over two decades since The key distinction between CompuServe and PRODIGY is and PRODIGY CompuServe distinction between The key two fold. its to the public and held itself out First, PRODIGY computer bulletin the content of its as controlling members boards.control through this PRODIGY implemented Second, . . . . program software screening its automatic By actively from its and manpower to delete notes utilizing technology and boards on the basis of offensiveness computer bulletin deci- example, PRODIGY is clearly making “bad taste”, for editorial and such decisions constitute sions as to content, control. A. 74 75 76 77 78 Oakmont decision.”). enacted but impactful statute, proposals to amend Section 230 should but impactful statute, proposals and careful scrutiny.be met with great hesitation Having language, history, and purpose presented a fuller picture of the in detail the Ending Sup- of Section 230, Part II will examine Act, Senator Hawley’s attempt to port for Internet Censorship from big tech companies that fail revoke Section 230 immunity content moderation policies. to maintain politically neutral dilemma, Congress enacted Section 230 in order to eliminate dilemma, Congress enacted Section content that had been cre- the strong disincentive to moderate two decisions. ated by the combination of these \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown Seq: 16 472 15-FEB-21 11:00 its bulletin boards, while CompuServe did not. CompuServe while boards, its bulletin January 2019, Senator Josh Hawley made a name for himself January 2019, Senator Josh Hawley made a name for himself the court wrote: court wrote: the is under attack. “had the odd impact of immunizing online service impact of immunizing online Oakmont “had the odd hands-off ap- liability if they take an entirely providers from them liable if content, but holding proach to user-generated content.” they take some steps to moderate 42993-crn_106-2 Sheet No. 87 Side B No. 87 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 88 Side A 03/12/2021 06:20:48 R . ASH 473 473 Catie , W Simon & See (last updated Since be- Since (Jan. 7, 2021, An Insurrection (Jan. 7, 2021, see also Burwell (Jan. 7, 2021), 81 OST IMES IMES . P IMES Here Are the Republi- see also Kimberly Do- ASH , N.Y. T , W , N.Y. T , N.Y. T The Tyranny of Big Tech, stating , https://www.hawley.senate.gov/biogra- OV .G According to his website, Senator Senator website, to his According Hawley Answers Trump’s Call for Election Chal- Hawley Answers Trump’s Call for Election 79 ENATE COMPELLING CODE CODE COMPELLING As Missouri’s Attorney General, he “stood General, he “stood Attorney As Missouri’s .S Jenny Gross & Luke Broadwater, note 80. 80 See AWLEY supra / (Dec. 30, 2020), https://www.nytimes.com/2020/12/30/us IMES / https://www.washingtonpost.com/news/magazine . (Aug. 28, 2019), AG Biography, H Biography, A Conservative Senator’s Crusade Against Big Tech Gilad Edelman, A Conservative Senator’s Election Results Under Attack: Here Are the Facts M M K 80 81 79 OST - 12:49 PM), https://www.nytimes.com/2021/01/07/us/politics/republicans ]; against-certification.html [https://perma.cc/HLD2-9LD9 Schuster Cancels Plans for Senator Hawley’s Book Incited by the President, Trump Supporters Violently zier & Vera Bergengruen, Incited by the President, Trump Supporters https://time.com/5926883/ Storm the Capitol, TIME (Jan. 6, 2021, 3:07 PM), ] (describing trump-supporters-storm-capitol/ [https://perma.cc/5XUZ-VVH7 the violent attack on the Capitol). The next day, Simon & Schuster cancelled the upcoming publication of Senator Hawley’s book be- that the company could not “support Senator Hawley after his role in what came a dangerous threat.” A. Harris & Alexandra Alter, Elizabeth / Jan. 5, 3:50 PM), https://www.washingtonpost.com/elections/interactive/2020 ] (documenting, explaining, election-integrity/ [https://perma.cc/9UEW-Z779 fraud); Aaron Blake, and debunking Trump’s claims of election Hopefuls Sets an Ugly Stage for 2024 GOP Presidential wp/2019/08/28/feature/a-conservative-senators-crusade-against-big-tech/ wp/2019/08/28/feature/a-conservative-senators-crusade-against-big-tech/ 39-year-old Republican fresh- ] (“Josh Hawley, a [https://perma.cc/W23P-GYY4 face of the conservative Missouri . . . has quickly become the man senator from against Silicon Valley.”).side of the backlash 2021, Senator Hawley By January Trump’s baseless claims that the 2020 rose to infamy for championing Donald him due to widespread fraud––possiblypresidential election was “stolen” from for president in 2024 in mind. with his own ambitions of running Edmondson & Michael Crowley, lenge, N.Y. T up to big tech, launching investigations of the most powerful of the most investigations tech, launching up to big in the world—Googlecompanies and Facebook—to Mis- protect Amendment.” and the First their data, sourians, - https://www.nytimes.com/2021/01/07/books/simon-schuster-josh-hawley book.html [https://perma.cc/TY4V-XFGK]. - 12:01 PM), https://www.washingtonpost.com/politics/2021/01/07/an-insur [https://perma.cc/ rection-sets-an-ugly-stage-2024-gop-presidential-hopefuls/ 2021, Senator Hawley is “thought to R35B-8VBZ] (stating that, as of January in 2024”).harbor ambitions to run for president hours On January 6, 2021, just stormed the Capitol, Senator Hawley (as after a violent mob of Trump’s supporters formally objected to the certification of well as Senator Ted Cruz and four others) the election results. Election Results cans Who Objected to Certifying the \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown Seq: 17 15-FEB-21 11:00 2021] 2021] tech. on big by taking P Hawley is “one of the nation’s leading constitutional lawyers” lawyers” constitutional leading the nation’s of is “one Hawley in the a lead attorney freedom as for religious who fought case. Hobby Lobby phy [https://perma.cc/U7UF-84DX] (last visited Nov. 28, 2020); as v. Hobby Lobby Stores, Inc., 573 U.S. 682, 687 (2014) (listing Senator Hawley counsel). politics/josh-hawley-trump-election-challenge.html [https://perma.cc/J7TK- politics/josh-hawley-trump-election-challenge.html objection to the election results); Ann Ger- PW8Q] (reporting on Senator Hawley’s hart, C Y 42993-crn_106-2 Sheet No. 88 Side A No. 88 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 88 Side B 03/12/2021 06:20:48 R R R R R R M K 86 C Y note 79; , https:// 87 OV .G supra [Vol. 106:457 106:457 [Vol. ENATE .S 85 (May 9, 2019), https:// AWLEY note 41. HINGS , H T note 42 (explaining that Senator note 41; Senator Hawley Calls for supra , IRST He lamented the “surge” in the “surge” He lamented , F supra supra 83 , In addition, he argued that social In addition, he 82 84 supra note 42 (accusing Twitter of “repeatedly tar- , CORNELL CORNELL LAW REVIEW note 79; see also Big Tech Id. supra Senator Hawley also accused social media of “hijacking users’ neural Senator Hawley also accused social Id. Id. See Censoring Pro-Life Content, Senator Hawley Introduces Legislation Edelman, Josh Hawley, The Big Tech Threat One month after his “Big Tech Threat” speech, Senator One month after his “Big Tech Perhaps Senator Hawley’s foremost issue with “Big Tech” Hawley’s foremost issue with Perhaps Senator In May 2019, Senator Hawley delivered a speech entitled a speech Hawley delivered 2019, Senator In May With Section 230, tech companies get a sweetheart deal that tech companies get a sweetheart With Section 230, exemption from tradi- no other industry enjoys: complete for providing a forum tional publisher liability in exchange .free of political censorship . . . Unfortunately, and unsur- up its end of the bargain. prisingly, big tech has failed to hold that shows big tech compa- There’s a growing list of evidence censor viewpoints they dis- nies making editorial decisions to agree with. process is shrouded in Even worse, the entire refuse to make their proto- secrecy because these companies cols public. states that if the tech This legislation simply immunity, giants want to keep their government-granted accountability to their edi- they must bring transparency and they don’t discriminate. torial processes and prove that 84 85 86 87 82 83 circuitry to prevent rational decision-making” and blamed Facebook for dulling circuitry to prevent rational decision-making” and blamed Facebook for dulling attention spans. Third-Party Audit of Twitter [a] get[ing] pro-life organizations” after it suspended an “account affiliated with pro-life film”). Hawley, with others, “sent a letter to Facebook CEO Mark Zuckerberg criticizing Hawley, with others, “sent a letter to Facebook CEO Mark Zuckerberg criticizing [Facebook’s] . . . censorship of [a] pro-life organization”); Edelman, Senator Hawley Introduces Legislation [https:// www.firstthings.com/web-exclusives/2019/05/the-big-tech-threat perma.cc/FR2R-4KCY]. On this alleged bias, Senator Hawley has said: bias, Senator Hawley has said: On this alleged \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown Seq: 18 474 15-FEB-21 11:00 coming a senator, he has partnered with Democratic senators senators Democratic with partnered he has a senator, coming legislation. privacy on data Hawley introduced the Ending Support for Internet Censorship Hawley introduced the Ending (and therefore with Section 230) stems from his belief that with Section 230) stems from (and therefore viewpoints. “censor” conservative social media companies “The Big Tech Threat” in which he suggested that “there is suggested that in which he Tech Threat” “The Big with the deeply wrong, maybe even deeply troubling, something media economy.” entire social [https://perma.cc/WQ6U-VMYV] (last [https://perma.cc/WQ6U-VMYV] (last www.hawley.senate.gov/issues/big-tech Hawley’s efforts to take on “Big Tech”). visited June 4, 2020) (listing Senator media is harmful to society and the economy in the long run to society and the economy media is harmful to “define our allowing social media platforms and discouraged future economy”—a media economy.” “social adolescent suicide rates and the correlation between depres- between and the correlation suicide rates adolescent media use. sion and social 42993-crn_106-2 Sheet No. 88 Side B No. 88 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 89 Side A 03/12/2021 06:20:48 R R R Part 475 475 Al- In- Senator note 41. 95 91 infra supra , Under Senator Senator Under immunity by prov- immunity 89 note 41 (emphasis added); note 34; see also S. 1914. supra supra would lose the automatic lose the automatic would , , 90 - see also Senator Hawley Introduces Leg “Politically biased” content mod- “Politically biased” 93 (June 20, 2019), https://medium.com/@jess- 92 94 EDIUM COMPELLING CODE CODE COMPELLING The bill carves out exceptions to this definition for The bill carves out exceptions to this See Senator Hawley Introduces Legislation see also Jess Miers, Senator Hawley’s Proposal to End Sup- 2(a)(3)(B)(i)(III) (stating the same in more formal terms). 2(a)(3)(B)(i)(III) (stating the same in more (June 19, 2019), https://www.breitbart.com/politics/2019/ (June 19, 2019), https://www.breitbart.com/politics/2019/ 2(a)(3)(A). note 41 (announcing and describing the bill). note 41 (announcing and describing the 2(a)(3)(C)(i), (D)(i). 2(a)(3)(B)(ii)(I). S. 1914, 116th Cong. (2019); REITBART § §§

supra He has framed the legislation as a measure necessary to necessary a measure as legislation the has framed He S. 1914 § Id. Id. Josh Hawley Bill Would ‘Stop Big Tech’s Assault on Free Sean Moran, Josh Hawley Bill Would ‘Stop Big Tech’s The bill applies only to “big tech companies”—defined of an as any provider Senator Hawley Introduces Legislation Senator Hawley Introduces Legislation See The company would bear the cost of the audit and would The company would bear the Specifically, the bill states that Section 230 shall not im- bill states that Section 230 Specifically, the 88 2(a)(3)(B)(iii)(I); .” politically neutral § M K 93 94 95 89 90 91 92 88 immunity they currently possess under Section 230. Section possess under they currently immunity This limitation, however, fails to save the bill from its defects, discussed This limitation, however, fails to save III. Speech’, B than 30 million active monthly users in interactive computer service with “more monthly users worldwide, or who have the U.S., more than 300 million active revenue”—andmore than $500 million in global annual and medium- not to small sized tech companies. see also S. 1914 § eration is defined as that which “is designed to negatively affect as that which “is designed eration is defined viewpoint” or political candidate, or political a political party, promotes access to, or the avail- “disproportionately restricts or party, political candidate, ability of, information from a political or political viewpoint.” 06/19/josh-hawley-bill-would-stop-big-techs-assault-on-free-speech/ [https:// 06/19/josh-hawley-bill-would-stop-big-techs-assault-on-free-speech/ perma.cc/4GN7-YQ7J]. Hawley’s bill, big tech companies bill, big tech Hawley’s \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown Seq: 19 15-FEB-21 11:00 2021] 2021] Act. miers/senator-hawleys-proposal-to-end-support-for-internet-speech- 86c167fcaeeb [https://perma.cc/9LCT-479J] [hereinafter Miers, - Hawley’s Proposal] (calling the “business necessity exception” “perplexing” be cause “[c]ontent moderation is always a crucial business necessity”). be required to reapply for immunity every two years. be required to reapply for immunity munize a big tech company unless the FTC certifies by tech company unless the munize a big not moderate infor- vote “that the company does supermajority providers in a by other information content mation provided political candi- biased against a political party, manner that is viewpoint.” date, or political “stop Big Tech’s assault on free speech.” on free assault Big Tech’s “stop stead, these companies would need to earn would need companies stead, these convincing “by clear and Commission Federal Trade ing to the practices content-removal and that their algorithms evidence are moderation practices that are “necessary for business,” or for speech not pro- moderation practices that are “necessary for business,” or for speech not has a tected by the First Amendment, where there is “no available alternative that to less disproportionate effect, and the provider does not act with the intent discriminate based on political affiliation, political party, or political viewpoint.” Id. port for Internet Speech, M islation, C Y 42993-crn_106-2 Sheet No. 89 Side A No. 89 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 89 Side B 03/12/2021 06:20:48 R . . M K C Y ASH ASH (July (June Trump: , W , W 97 ECODE REITBART Tech Industry : R , B [Vol. 106:457 106:457 [Vol. OX , V Conservative news or- (July 11, 2019), https:// attracted immediate attracted immediate 98 . (June 20, 2019), https:// - to Sen most responses 96 REITBART OUND F , B (July 11, 2019), https:// (July 11, 2019), https:// OV RONTIER .G F Holding the Technology Industry Hostage ENATE Sen. Hawley’s “Bias” Bill Would Let the Government Sen. Hawley’s “Bias” Bill Would Let the .S CORNELL CORNELL LAW REVIEW LECTRONIC note 79. AWLEY H (July 13, 2019, 6:55 PM), https://www.washingtonpost.com/ (July 13, 2019, 6:55 PM), https://www.washingtonpost.com/ supra , 99 IEW k Josh Hawley’s see also Sean Moran, Poll: 48% of Americans Bac V S reported in July 2019 that a poll “found that nearly a majority Breitbart reported in July 2019 that a poll “found ’ Immediate Backlash Against a Political Neutrality a Political Backlash Against Immediate Requirement OST See infra subpart II.B. Edelman, See, e.g., Editorial Board, How Congress Could Destroy Social Media President Trump Praises Sen. Hawley’s “Ending Support for Internet Cen- Sen. Hawley’s “Ending Support President Trump Praises The bill, which had no cosponsors, The bill, which : P B. 97 98 99 96 OST / 21, 2019, 8:00 AM), https://www.vox.com/recode/2019/6/21/18693505 facebook-google-twitter-regulate-big-tech-hawley-bill-congress [https:// perma.cc/EN5V-XECB] (“[I]t’s a lousy idea.”); Salvador Rodriguez, Con- Slams GOP Senator’s Bill that Would Hold Companies Liable for User-Posted - tent, CNBC (June 19, 2019, 1:40 PM), https://www.cnbc.com/2019/06/19/re actions-to-sen-hawleys-bill-that-would-overturn-section-230-of-cca.html - [https://perma.cc/3AC2-XFLN] (collecting criticism from figures in the tech in dustry); Daisy Soderberg-Rivkin, - opinions/how-congress-could-destroy-social-media/2019/07/13/bf69673a [https://perma.cc/K6F9-SBSK] a4d2-11e9-bd56-eac6bb02d01d_story.html discard systems crucial to making the Web (“Mr. Hawley’s bill would push sites to their immunity and risk being sued into a safer place . . . [o]therwise, they’d lose bankruptcy.”); Elliot Harmon, Decide Who Speaks, E ator Hawley’s proposal have not been as enthusiastic. have not been proposal ator Hawley’s - www.breitbart.com/politics/2019/07/11/48-americans-back-josh-hawleys-end [https://perma.cc/AQ66-9NP6]. ing-support-internet-censorship-act/ criticism. announced the bill the day that Senator Hawley On news media weeks, and months that followed, and, in the days, criticize Senator came out in full force to and tech blogs and an assault on as impractical, unwise, Hawley’s proposal Google, YouTube, of Facebook, Twitter, the business models and others. - 11, 2019), https://www.breitbart.com/politics/2019/07/11/trump-josh [https://perma.cc/ hawley-has-very-important-legislation-to-stop-censorship/ 2LKJ-27R5]; Act Ending Support for Internet Censorship ganization the senator’s Ending Support for In- of American voters, or 48 percent, backed ternet Censorship Act. the A majority of Republicans and Independents support favor the bill.”legislation, while 46 percent of Democrats Sean Moran, to Stop Censorship Josh Hawley Has ‘Very Important’ Legislation sorship Act” - www.hawley.senate.gov/president-trump-praises-sen-hawleys-ending-support [https://perma.cc/47UB-NGP6]. internet-censorship-act \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown Seq: 20 476 15-FEB-21 11:00 though Donald Trump praised Senator Hawley’s efforts, calling calling efforts, Hawley’s Senator praised Trump Donald though to do we have because legislation, important bill “very the happening,” about what’s something P - www.eff.org/deeplinks/2019/06/sen-hawleys-bias-bill-would-let-government ] (“Major online platforms’ decide-who-speaks [https://perma.cc/4S5X-J7N5 moderation policies and practices are deeply flawed, but putting a government agency in charge of policing bias would only make matters worse.”); Peter Kafka, Washington’s First Attempt at Regulating Big Tech Is a Joke 42993-crn_106-2 Sheet No. 89 Side B No. 89 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 90 Side A 03/12/2021 06:20:48 R R 101 477 477 . (June 20, Later, he EV Josh Hawley’s R L ’ 103 AT The Folly of Govern- , N (July 17, 2019, 12:01 104 EDIA “Section 230 is not “Section . M OC 100 : S (June 25, 2019, 1:30 PM), https:// EASON EASON , R , R COMPELLING CODE CODE COMPELLING note 9. supra Senator Wyden further explained, “You can have a further explained, “You can Senator Wyden Stewart, 102 What Does the Bill Mean, and Why Is It Worth Talking What Does the Bill Mean, and About? See Id. Id. Id. Eric Boehm, Sen. Ron Wyden: Conservatives Are ‘Totally Wrong’ About note 42 (highlighting the irony of a Republican-backed bill that “empower[s] note 42 (highlighting the irony of a Republican-backed that there is “absolutely no weight to [the] argu- “absolutely no weight to [the] Reason that there is - (July 1, 2019), https://www.washingtontimes.com/news/2019/jul/1/the - has criti 230, Section cowrote who Wyden, Senator Even A question raised by the widespread condemnation of Sen- A question raised by the widespread C. M K IMES 100 101 102 103 104 liberal platform; you can have conservative platforms. you can have conservative liberal platform; And the government but to come about is not through way this is going choices, people citizens making through the marketplace, choosing to invest.about neutrality.” This is not - 2019, 6:30 AM), https://www.nationalreview.com/2019/06/josh-hawley-in - ternet-censorship-bill-unconstitutional/ [https://perma.cc/87S4-3CND] (capi talization altered). - reason.com/2019/06/25/sen-ron-wyden-conservatives-are-totally-wrong ]. about-political-neutrality-under-section-230/ [https://perma.cc/P4GN-MSUM told ‘deal’ requiring 230 involves an “implicit ment” that Section a neutral political stance.” platforms [to] take Political Neutrality Under Section 230 - AM), https://reason.com/2019/07/17/the-folly-of-government-imposed-social ] (“Although Hawley claims he media-neutrality/ [https://perma.cc/8G3H-G6S3 the upshot of such decisions would be is trying to promote freedom of speech, more censorship, not less.”). website Even one article on a conservative news mess.”called the bill an “unwise, unconstitutional David French, Unconstitutional Mess Internet Censorship Bill Is an Unwise, ment-Imposed Social Media “Neutrality” stop-internet-censorship-act-would-ironically-/ [https://perma.cc/MHL4-EJV3] stop-internet-censorship-act-would-ironically-/ Hawley is installing the cameras.”); Stern, (“Big brother is watching, and Josh supra Jacob Sullum, bureaucrats to interfere in the marketplace”); T “230 is all about letting private companies make their own make private companies all about letting “230 is content and take other some content to leave up decisions down.” \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown Seq: 21 15-FEB-21 11:00 2021] 2021] the with inconsistent as entirely bill Hawley’s Senator cized of the statute. and meaning purpose ator Hawley’s proposal is whether the merits of requiring politi- ator Hawley’s proposal is whether are worth analyzing at all. cally neutral content moderation Support for Internet Cen- Despite the criticism of the Ending not a mere suggestion reduced to sorship Act so far, the bill is hypotheticals—it in a real bill and has been put into real words (and the President of the is supported by a real U.S. senator about neutrality.about Period. told Senator Wyden Full stop,” industry. on the tech that focuses of Vox Recode, a subset C Y 42993-crn_106-2 Sheet No. 90 Side A No. 90 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 90 Side B 03/12/2021 06:20:48 R R M K C Y 106 107 ETON Sim- . 2597, , 6 S EV 109 108 L. R [Vol. 106:457 106:457 [Vol. ARDOZO , 40 C see also Danielle Keats Citron - of it automati discussion making - All Claims Are Not Created Equal: Challeng 105 . 453, 455, 463-67 (2018) (arguing that courts “have note 106 (interviewing Senator Hawley, who said that note 106 (interviewing Senator Hawley, CORNELL CORNELL LAW REVIEW EV . R ECH - (Aug. 16, 2019, 8:00 AM), https://www.wired.com/story/josh . 355, 356–57 further that “the Internet has flour- (2010) (arguing IRED . L. T EV Josh Hawley Says Tech Enables ‘Some of the Worst of Matt Laslo, Josh Hawley Says Tech Enables ‘Some EO . R IR See Rachel Seaton, Comment, note 96 (describing former President Trump’s support for the See supra note 96 (describing former President See Id. See Laslo, supra Furthermore, the Ending Support for Internet Censorship Ending Support for Internet Furthermore, the However, as Jeff Kosseff explains, today’s Internet is in no However, as Jeff Kosseff explains, Although Section 230 was written in the nascent days of the Although Section 230 was written drafted the statute modern Internet, Congress intentionally bulletin boards, but also to cover not only AOL and Prodigy conceived at the time.future technology that was not This C ALL 109 105 106 107 108 ing the Breadth of Immunity Granted by the Communications Decency Act ing the Breadth of Immunity Granted by bill). America’, W “[t]he state of the law . . . has changed a lot since the 1990s [so] we’ve got to deal “[t]he state of the law . . . has changed needs of families and consumers now, not with the reality that we live in and the 30 years ago”). what they may have been, gosh, almost H WIRED Maga- Hawley told WIRED bill, Senator the fate of his Regarding to build momentum will continue that [we] zine, “I’m hopeful move lot of tech legislation we’ll see a I’m hopeful that here, and . . .forward. at a time, and I do it one piece of legislation Let’s I put forward.” start with the proposals that hope that they’ll the President, is for the bill, even from Of course, support for discussion, not for constitutionality. merely a reason Hawley employs a because Senator Act warrants discussion 230. for amending Section common justification In particular, and that “[i]t is Section 230 is severely outdated he argues that statute. 21st century” and update the time to enter the \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown Seq: 22 478 15-FEB-21 11:00 United States at the time), at the States United ished to a point where such a broad concept of immunity under the CDA is not as ished to a point where such a broad concept of immunity under the CDA is imperative as it was in the Internet’s early stages”); - & Benjamin Wittes, The Problem Isn’t Just Backpage: Revising Section 230 Immu nity, 2 G 2658 (2019) (arguing that because “[t]his absolute immunity scheme was con- 2658 (2019) (arguing that because “[t]his absolute immunity scheme was structed when the internet was in its infancy,” it should be “refined”). way incompatible with the meaning or origin of Section 230: way incompatible with the meaning hawley-tech-enables-worst-of-america/ [https://perma.cc/L4EN-427J] (inter- hawley-tech-enables-worst-of-america/ viewing Hawley). extended this safe harbor far beyond what the provision’s words, context, and extended this safe harbor far beyond what the provision’s words, context, purpose support” and that the technology companies that Section 230 protects ago); today are “immensely different” from what they were twenty-five years Michal Lavi, The Good, the Bad, and the Ugly Behavior cally worthwhile.cally introduc - months after 2019, two In August proposal. by his Hawley stood bill, Senator ing the ilarly, scholars have argued that Section 230, which was have argued that Section ilarly, scholars Internet was significantly differ- passed when “the state of the and ill-equipped to cope ent than it is now,” is inappropriate in its modern form. with the challenges of the Internet 42993-crn_106-2 Sheet No. 90 Side B No. 90 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 91 Side A 03/12/2021 06:20:48 R R R : OX 114 479 479 supra , V note 51, at 38. Even if the order does not have a Even if the order does not have supra 111 it served as a catalyst for serious dis- it served as a catalyst for serious However, legal experts have expressed However, legal experts have COMPELLING CODE CODE COMPELLING 112 113 110 , FCC (Oct. 21, 2020, 10:30 AM), https://www.fcc.gov/news- Gradual Erosion, Exec. Order No. 13,925, 85 Fed. Reg. 34,079 (May 28, 2020); Exec. Order No. 13,925, 85 Fed. Reg. Sara Morrison, What the FCC Can and Can’t Do to Section 230 (Oct. 21, 2020, 4:325 PM), https://www.vox.com/recode/21519337/sec- See See supra note 24–27. Thomas M. Johnson Jr., The FCC’s Authority to Interpret Section 230 of the See Kosseff, In fact, Representative Cox and Senator Wyden had major Wyden had Cox and Senator Representative In fact, Censorship Ending Support for Internet Additionally, the Following the order, FCC Chairman Ajit Pai pledged to rein- Following the order, FCC Chairman - “interac of definition broad by its extraordinarily be seen can the immunity. to are entitled that services” computer tive general principles establishes neutrality Such technology of technological regardless designed to endure, that are developments. M K ECODE 111 112 113 114 110 note 23 and accompanying text (describing the Executive Order). note 23 and accompanying text (describing Communications Act - events/blog/2020/10/21/fccs-authority-interpret-section-230-communica tions-act [https://perma.cc/F4PQ-SUSA]. R Senator Wyden and Representative Cox issued a statement ex- Senator Wyden and Representative “intended to keep the FCC out of plaining that Congress clearly \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown Seq: 23 15-FEB-21 11:00 2021] 2021] doubt over whether the agency has the authority to do so. doubt over whether the agency Internet companies like America Online, which “trafficked in which “trafficked America Online, companies like Internet each day,” in messages, emails, and posts millions of user drafted Section 230. mind when they administrative, inspired a wave of executive, Act has already 230. efforts to dismantle Section and legislative Senator nearly a year later of the bill was followed Hawley’s introduction on Preventing Trump’s Executive Order by former President of attention to which brought a new level Online Censorship, the future of tech anticonservative bias and the issue of alleged companies’ legal shield. cussion in Congress about amending the statute. cussion in Congress about amending terpret Section 230. legal leg to stand on, / tion-230-trump-fcc-twitter-facebook-social-media-ajit-pai [https://perma.cc T9AU-ACGD] (explaining that “legal experts—former FCC commissioners and staff among them—don’t the FCC is allowed to regulate the internet in this think way”). C Y 42993-crn_106-2 Sheet No. 91 Side A No. 91 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 91 Side B 03/12/2021 06:20:48 , M K T ’ ?: C Y EP 117 (June 116 Senator see also D EDERALIST (Oct. 20, 2020), Senator Hawley NACCOUNTABILITY [Vol. 106:457 106:457 [Vol. OV , F U .G (Oct. 15, 2020, 3:40 (Oct. 15, 2020, 3:40 OUSE Exclusive: New Bill Would .H WITTER OSTERING F ALINOWSKI (July 30, 2019), https://www.hawley. (July 30, 2019), https://www.hawley. , M OV (2020), https://www.justice.gov/file/ (2020), https://www.justice.gov/file/ .G NNOVATION OR Sen. Hawley Introduces Legislation to Curb Sen. Hawley Introduces Legislation to I (June 17, 2020), https://www.hawley.senate. ENATE OV .S ed Congress to Erode Big Tech’s Legal The DOJ Asked Congress to Erode .G URTURING AWLEY CORNELL CORNELL LAW REVIEW ENATE ECOMMENDATIONS .S R 230––N (July 28, 2020), https://www.hawley.senate.gov/senator- (Sept. 24, 2020, 5:52 AM), https://www.businessinsider.com/ AM), https://www.businessinsider.com/ (Sept. 24, 2020, 5:52 Meanwhile, the Department of Justice conducted conducted of Justice the Department Meanwhile, OV AWLEY Ron Wyden (@RonWyden), T see also Ron Wyden (@RonWyden), .G ECTION 115 NSIDER , S . I ENATE US .S Isobel Asher Hamilton, Isobel Asher Hamilton, Platforms Lia- See Reps. Malinowski and Eshoo Introduce Bill to Hold Tech Senator Ron Wyden & Representative Chris Cox, Reply Comments of Co- & Representative Chris Cox, Reply Senator Ron Wyden AKEAWAYS AND The Ending Support for Internet Censorship Act also Censorship Act for Internet Support The Ending T USTICE J AWLEY EY 116 117 115 senate.gov/sen-hawley-introduces-legislation-curb-social-media-addiction senate.gov/sen-hawley-introduces-legislation-curb-social-media-addiction at “curb[ing] [https://perma.cc/B5A6-TNKL] (announcing the SMART Act, aimed tech giants use to exploit users”); addictive and deceptive techniques that to Sue Big Tech Companies Acting Hawley Announces Bill Empowering Americans in Bad Faith, H Social Media Addiction, H - 25, 2020), https://thefederalist.com/2020/06/25/exclusive-new-bill-would [https:// slash-protections-for-tech-companies-censoring-free-speech/ the Stopping Big Tech Censorship Act, perma.cc/W8KP-NHZG] (announcing for “tech companies that restrict which would eliminate Section 230 immunity constitutionally protected speech”); Protections as Trump Accused Firms of Anti-conservative Bias and “Cancel Cul- Accused Firms of Anti-conservative Protections as Trump ture”, B ble for Algorithmic Promotion of Extremism Authors of Section 230 of the Communications Act of 1934, In the Matter of 230 of the Communications Act of Authors of Section Petition for and Information Administration National Telecommunications Communications Act of Provisions of Section 230 of the Rulemaking to Clarify - https://www.documentcloud.org/documents/7213938 1934 (Sept. 17, 2020), [https://perma.cc/ 2020-09-17-Cox-Wyden-FCC-Reply-Comments-Final-2.html 8Q3T-U7MQ]; - gov/senator-hawley-announces-bill-empowering-americans-sue-big-tech-com - panies-acting-bad-faith [https://perma.cc/KF34-CW6S] (announcing the Limit tech ing Section 230 Immunity to Good Samaritans Act, an effort to require big to companies to update their terms of service to include a duty of good faith and uphold that duty in order to receive Section 230 protection); Introduces Bill to Remove Section 230 Immunity from Behavioral Advertisers H OF \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown Seq: 24 480 15-FEB-21 11:00 this area.” this hawley-introduces-bill-remove-section-230-immunity-behavioral-advertisers hawley-introduces-bill-remove-section-230-immunity-behavioral-advertisers [https://perma.cc/2DH3-TKEE] (announcing the BAD ADS Act, which seeks to - “remove Section 230 immunity from Big Tech companies that display manipula K [https:// PM), https://twitter.com/RonWyden/status/1316826228754538496 perma.cc/6A9Q-ZS9X]. sparked a series of other bills, including several others intro- several others bills, including a series of other sparked Senator Hawley––aduced by likely to continue. trend that is - https://malinowski.house.gov/media/press-releases/reps-malinowski-and [https://perma.cc/ eshoo-introduce-bill-hold-tech-platforms-liable-algorithmic Americans from Dangerous Algorithms 7YNQ-KVPB] (announcing the Protecting in order to address alleged facilitation of Act, which would amend Section 230 Elle Reynolds, extremism by social media platforms); Censoring Free Speech Slash Protections For Tech Companies ] (explaining the agency’s 1286331/download [https://perma.cc/W5ZN-XSSM for greater transparency in content proposed Section 230 reforms and calling of bias). moderation in order to assess claims a review of Section 230 and published proposed reforms. proposed published 230 and Section of a review - [https://perma.cc/944E doj-asks-congress-to-weaken-section-230-2020-9 (“‘Th[eWF92] proposed] legislation addresses concerns about online cen- DOJ’s and accountability when platforms sorship by requiring greater transparency General William] Barr said.”); remove lawful speech,’ [then-Attorney 42993-crn_106-2 Sheet No. 91 Side B No. 91 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 92 Side A 03/12/2021 06:20:48 . , 481 481 OUND Urgent: F Thus, LECTRONIC 114 (2019) , E 118 RONTIER F NTERNET I Wicker, Graham, Black- Like the Fairness LECTRONIC 120 , E REATED THE C ORDS THAT (June 19, 2019, 12:05 PM), https://rea- W Josh Hawley Introduces Bill to Put Washington 119 IX EASON -S COMPELLING CODE CODE COMPELLING WENTY T (Sept. 8, 2020), https://www.commerce.senate.gov/ (Sept. 8, 2020), https://www.commerce.senate.gov/ HE OV , T .G - . (Mar. 31, 2020), https://www.eff.org/deeplinks/2020/03/earn OSSEFF ENATE EARN IT ACT, S. 3398, 116th Cong. (2020); Sophia Cope, Aaron EARN IT ACT, S. 3398, 116th Cong. K Elizabeth Nolan Brown, .S OUND F EFF J See See Therefore, in addition to deserving analysis standing alone, to deserving analysis standing Therefore, in addition M K OMMERCE RONTIER 119 120 118 (explaining that Representative Cox intended to protect platforms like Google and (explaining that Representative Cox intended to protect platforms like Google Yelp). Mackey & Andrew Crocker, The EARN IT Act Violates the Constitution ]; Joe Mullin, it-act-violates-constitution [https://perma.cc/W3KR-TDVV EARN IT Act Introduced in House of Representatives - 2020/9/wicker-graham-blackburn-introduce-bill-to-modify-section-230-and ] (announcing the On- empower-consumers-online [https://perma.cc/VVN3-P9P9 Act, which would condition Section 230 line Freedom and Viewpoint Diversity reasonable belief” that the content it immunity on a tech company’s “objectively category”). restricts “falls within a certain, specified C burn Introduce Bill to Modify Section 230 and Empower Consumers Online burn Introduce Bill to Modify Section tive, behavioral ads or provide data to be used for them”); tive, behavioral ads or provide data to F \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown Seq: 25 15-FEB-21 11:00 2021] 2021] IT is the EARN prominence particular that gained effort One platforms for online practices” “best would establish which Act, sexual to the online and respond “to prevent, reduce, in order been criticized. has similarly of children,” exploitation - (Oct. 2, 2020), https://www.eff.org/deeplinks/2020/10/urgent-earn-it-act-in - troduced-house-representatives [https://perma.cc/2RMU-NLPK] (raising con cerns about the Act and explaining that the “best practices” were originally was mandatory in order to receive Section 230 immunity, but that the bill amended to make them advisory after widespread criticism). - son.com/2019/06/19/josh-hawley-introduces-bill-to-put-washington-in charge-of-internet-speech/ [https://perma.cc/Z4ST-FGFE] (“Essentially, Hawley Senator Hawley’s bill also represents the need for a broader bill also represents the Senator Hawley’s with any legal and policy issues associated discussion of the moderation. neutrality in content law requiring political First, there may be legal arguments to it is worth considering that of a law requiring politically support the constitutional viability neutral content moderation. that the Critics have commented Censorship Act appears to be an Ending Support for Internet Doctrine, a Federal Communica- attempt to revive the Fairness the mid-twentieth century that tions Commission policy during air fair and adequate coverage of required broadcast media to issues. opposing views on controversial if time has been any indication, Senator Hawley’s bill may have Hawley’s bill Senator been any indication, if time has immunity, Section 230 to limit of the first attempts been one far from the last.but it is the efforts that The bill and many of even if Senator it so far demonstrate that have followed brings change is not the one that ultimately Hawley’s proposal bias by social allegations of anticonservative to Section 230, drive Republican- are likely to continue to media platforms in this area. backed efforts in Charge of Internet Speech, R C Y 42993-crn_106-2 Sheet No. 92 Side A No. 92 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 92 Side B 03/12/2021 06:20:48 R R R R M K OC- C Y D AIRNESS [Vol. 106:457 106:457 [Vol. Senator Hawley’s Propo- deserves the atten- ., R40009, F ERV S note 1 (“‘It’s not the fairness doctrine. However, no such scarcity However, no ESEARCH 7 (2011), https://fas.org/sgp/crs/misc/ (June 26, 2019, 3:30 PM), https:// (June 26, 2019, 3:30 PM), https:// . R 122 supra OX ONG SSUES A Republican Senator Wants the Government to A Republican Senator Wants the Government Because the opportunities for com- Because the opportunities , V I After all, the beauty of the Internet is After all, the beauty of the Internet , C 121 123 UANE note 42; see also Red Lion Broad. Co. v. FCC, 395 U.S. R CORNELL CORNELL LAW REVIEW note 42. 124 NN But see Osburn, A ONSTITUTIONAL supra C ATHLEEN K Stern, at 400–01. ISTORY AND Red Lion Broad. Co., 395 U.S. at 367–77, 400–01. 390, Id. See See Although the Fairness Doctrine was never explicitly de- never explicitly Doctrine was the Fairness Although Moreover, the Ending Support for Internet Censorship Act Moreover, the Ending Support : H note 56 (“Hawley’s bill is akin to a modern-day fairness doctrine, a supra note 56 (“Hawley’s bill is akin to a 121 122 123 124 tion of both the legal and tech communities.tion of both the legal and tech While current - www.vox.com/2019/6/26/18691528/section-230-josh-hawley-conservatism ]; Miers, twitter-facebook [https://perma.cc/F9YZ-GD2Y sal, Republicans, now applied to social media policy once vehemently opposed by companies.”); Stern, supra 367, 400–01 FCC “Fairness Doctrine” regulations in the context (1969) (upholding of broadcast media). The fairness doctrine is the FCC monitoring speech. This is simply saying we’re Cruz not going to give you a special benefit that no one else enjoys,’ [Senator Ted] bill].Hawley’s [of said ‘This is ending a subsidy on big tech.’”). TRINE that there is room for everyone to speak, listen, and respond. that there is room for everyone into private companies’ Therefore, government intervention cannot be justified by compari- content moderation practices son to the Fairness Doctrine.something to be There is also itself abandoned the Fairness said for the fact that the FCC Doctrine in 1987. Police Twitter for Political Bias wants to revive the old Fairness Doctrine—a denounced policy that was roundly on free speech and its propensity to further by conservatives for its chilling effect marginalize non-mainstream voices—and paradigm to apply this cursed policy anything online.”); Jane Coaston, \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown Seq: 26 482 15-FEB-21 11:00 Doctrine in the broadcast media context, a political neutrality neutrality a political context, media the broadcast in Doctrine their suppress to companies private require would requirement for “con- the opportunity to maximize in order own viewpoints heard. voices to be troversial” a political it in legitimizing reliance on clared unconstitutional, is extremely in content moderation neutrality requirement broadcast media profound differences between weak given the and the Internet.- context, the constitutional In the broadcast on the “scarcity Doctrine was largely based ity of the Fairness role in allocat- [and] the Government’s of broadcast frequencies ing those frequencies.” is just one piece of a larger dialogue about the future of Section is just one piece of a larger dialogue that certainly 230 and content moderation R40009.pdf [https://perma.cc/3QKG-B7CE]. municating one’s message were severely limited by the inherent message were severely limited municating one’s held that gov- the Supreme Court properties of broadcasting, in the broadcast into public discourse ernment intervention constitutional. medium was exists on the Internet. 42993-crn_106-2 Sheet No. 92 Side B No. 92 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 93 Side A 03/12/2021 06:20:48 483 483 , N.Y. their their 125 RINCIPLES ON , https:// P see also Hurley Why Facebook Is OLITICAL LARA P C ODERATION ANTA M S (Aug. 15, 2018 10:00 AM), HE T NCONSTITUTIONAL NCONSTITUTIONAL (May 28, 2019), https:// EJECTING A ONTENT EUTERS U See C , R : R ORKER Y DEA III I EW AD B , N EQUIREMENT AS COMPELLING CODE CODE COMPELLING R UST A CCOUNTABILITY IN J A HAN Leaving aside any other potential constitutional Leaving aside any other potential T EUTRALITY N 126 Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015); ORE M A Genocide Incited on Facebook, with Posts from Myanmar’s Military See ’s False Standards for Not Removing a See, e.g., Sue Halpern, Facebook’s False Standards for Not Removing - (Oct. 15, 2018), https://www.nytimes.com/2018/10/15/technology/my As appealing and quintessentially American as the goal of quintessentially American As appealing and While some legislative change may be coming for Section be coming for change may legislative While some e Nancy Pelosi Video M K RANSPARENCY AND IMES 126 125 T - www.newyorker.com/tech/annals-of-technology/facebooks-false-standards-for [https://perma.cc/6EQG-LGU8] (report- not-removing-a-fake-nancy-pelosi-video a “demonstrably false” video of Speaker ing that Facebook declined to remove company’s community standards); Paul Pelosi because it did not violate the Mozur, / https://www.reuters.com/investigates/special-report/myanmar-facebook-hate combat the [https://perma.cc/K6XR-J9TN] (noting how Facebook’s attempts to failed).hate speech against the Rohingya have In recognition of the failures of of current content moderation systems, organizations like the ACLU Foundation Northern California, the Center for Democracy & Technology, and the Electronic Frontier Foundation have pushed for content moderation policies that promote transparency and respect for users’ rights. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 579 (1995) (“Our v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 579 (1995) (“Our Fak santaclaraprinciples.org [https://perma.cc/G84M-HP6Z] (last visited Jan. 18, 2021).recommendations would be voluntary for the The implementation of those pres- tech companies and enforced by user perception and moral and economic sure rather than by the government. T \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown Seq: 27 15-FEB-21 11:00 2021] 2021] imperfect, surely are systems moderation content “ending censorship” may sound, the ironically-named Ending “ending censorship” may sound, Act weaves government cen- Support for Internet Censorship statutory backbone of today’s sorship into the fabric of the Internet. gov- At its core, the First Amendment prohibits the public discourse except in rare ernment from interfering in demanding standard of strict circumstances that satisfy the scrutiny. Losing the War on Hate Speech in Myanmar ] (detailing the anmar-facebook-genocide.html [https://perma.cc/4JB6-SAUG waged by Myanmar’s military on Facebook “systemic [misinformation] campaign” group); Steve Stecklow, against the Muslim Rohingya minority greatest asset is their freedom from government intervention intervention government from freedom is their asset greatest both that respect for improvements allowing into content, speech rights. platforms’ users’ and 230—perhaps later—Part rather than sooner that III will argue chal- to its practical in addition unconstitutionality, the bill’s (or any suggestion policy, should prevent it lenges and unwise moderation) requirement in content of a political neutrality state of Section any real threat to the current from becoming 230 immunity. C Y 42993-crn_106-2 Sheet No. 93 Side A No. 93 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 93 Side B 03/12/2021 06:20:48 M K C Y , N.Y. ATIONAL N algorithms New York Times [Vol. 106:457 106:457 [Vol. . 111, 146 (2018). EV 4 (2020), https:// L. R ULEMAKING OF THE Mike Isaac & Kevin Roose, Platforms, the First Amend- R ACE (Sept. 4, 2018), https:// see must also recognize that must also recognize IMES , 39 P 127 Id.; DMINISTRATION 128 ETITION FOR A , P OMMERCE C NFORMATION 883, 884 (2012). Though Volokh and Falk discuss Y I ’ TOF OL CORNELL CORNELL LAW REVIEW ’ —are inherently expressive. For example, EP . & P 129 CON Yes, Content Moderation Algorithms Are Speech Algorithms Are Speech Yes, Content Moderation Eugene Volokh and Donald M. Falk argue that search engine algorithms Eugene Volokh and Donald M. Falk argue , 135 S. Ct. at 2226 (“Content-based laws—thoseSee Reed, 135 S. Ct. at 2226 (“Content-based that target See, e.g., U.S. D (May 2, 2019), https://www.nytimes.com/2019/05/02/technology/ (May 2, 2019), https://www.nytimes.com/2019/05/02/technology/ Proponents of amending Section 230 in order to reflect how Section 230 in order Proponents of amending A. IMES ELECOMMUNICATIONS AND 129 127 128 which convey companies’ values, ethical standards, and edito- values, ethical standards, which convey companies’ the content moderation algorithm.the content moderation Although not all However, Sofia Grafanaki’s argument—that “are de- such newsfeed algorithms and do not reflect the views of the com- signed to optimize user engagement” pany—fails like Facebook’s decision to ban “InfoWars to consider situations founder and conspiracy theorist” Alex Jones. Facebook Bars Alex Jones, Louis Farrakhan and Others from Its Services T are necessarily “speech,” content moderation algorithms— “speech,” content moderation are necessarily rial judgments developing technology has produced a new form of “speech”— has produced a new developing technology “inherently incorporate the . . . company engineers’ judgments about what mate- “inherently incorporate the . . . company to their queries.”rial users are most likely to find responsive & Eugene Volokh Search Engine Search Donald M. Falk, Google: First Amendment Protection for Results, 8 J.L. E speech based on its communicative content—are unconstitutional presumptively proves that they are narrowly tailored and may be justified only if the government to serve compelling state interests.”). www.ntia.gov/files/ntia/publications/ntia_petition_for_rulemaking_7.27.20.pdf www.ntia.gov/files/ntia/publications/ntia_petition_for_rulemaking_7.27.20.pdf urging, [https://perma.cc/86E4-6ZZA] (requesting, at former President Trump’s “times have changed, and the liability that the FCC amend Section 230 because further Congress’s purpose that section rules appropriate in 1996 may no longer discourse”). 230 further a “true diversity of political tradition of free speech commands that a speaker who takes to the street corner to tradition of free speech commands that free from interference by the State based express his views in this way should be on the content of what he says.”). T \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown Seq: 28 484 15-FEB-21 11:00 issues with the bill, this Part will argue (1) that a requirement a requirement (1) that argue will this Part the bill, with issues - modera content neutral politically use companies big tech that a form of as unconstitutional is presumptively tion practices cannot sur- a requirement (2) that such speech, and compelled to serving tailored it is not narrowly scrutiny because vive strict interest. governmental a compelling “times have changed” since 1996 “times have changed” analysis, “[i]n the three weeks before the Aug. 6 bans, Infowars had a daily aver- analysis, “[i]n the three weeks before the Aug. 6 bans, Infowars had a daily main age of nearly 1.4 million visits to its website and views of videos posted by its YouTube and Facebook pages.” Nicas, Alex Jones Said Bans Would Jack Strengthen Him., N.Y. T He Was Wrong. ]. facebook-alex-jones-louis-farrakhan-ban.html [https://perma.cc/JZZ9-CZQW if The decision to ban Alex Jones and other figures promoting hate has little, anything, to do with optimizing engagement. According to a search engine algorithms rather than content moderation algorithms, both types search engine algorithms rather than about the value of content—whatof algorithms express the company’s views gets to be seen and what does not. do not For an argument that newsfeed algorithms Sofia Grafanaki, embody any particular viewpoint, see Filters ment and Online Speech: Regulating the 42993-crn_106-2 Sheet No. 93 Side B No. 93 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 94 Side A 03/12/2021 06:20:48 R , , In 132 485 485 134 TANDARDS , https:// S Soon after In addition, 137 TANDARDS 136 S OMMUNITY : C and intimidation. OMMUNITY 131 ACEBOOK : C , F ACEBOOK (Jan. 9, 2020), https://www.nytimes.com/ (Jan. 9, 2020), https://www.nytimes.com/ They express to users, and to the They express to , F Facebook CEO Mark Zuckerberg Facebook CEO Mark Zuckerberg - Facebook Says It Won’t Back Down from Al On the whole, Facebook’s Commu - whole, Facebook’s On the IMES . L. 173, 199–204 (2018). 133 135 M 130 . A COMPELLING CODE CODE COMPELLING note 12. URV . S Elizabeth Dwoskin, Craig Timberg & Isaac Stanley-Becker, supra NN See (Sept. 3, 2020, 6:50 PM), https://www.washingtonpost.com/technol- End-to-End Authentication: A First Amendment Hook to the Encryption End-to-End Authentication: A First Amendment OST See id. See Lauren Feiner, Twitter Bans Political Ads After Facebook Refused to Do Id. Part III. Objectionable Content Part I. Violence and Criminal Behavior Hate Speech, of end-to-end encryption, see Leonid For a similar argument in the context Mike Isaac & Cecilia Kang, . P The expressive nature of content moderation was made nature of content moderation The expressive M K ASH 135 136 137 130 131 132 133 134 www.facebook.com/communitystandards/objectionable_content [https:// www.facebook.com/communitystandards/objectionable_content 4, 2020). perma.cc/5ZVH-DPR8] (last visited June https://www.facebook.com/communitystandards/violence_criminal_behavior https://www.facebook.com/communitystandards/violence_criminal_behavior [https://perma.cc/Q5MP-VA3K] (last visited June 4, 2020). 2020/01/09/technology/facebook-political-ads-lies.html [https://perma.cc/ 2020/01/09/technology/facebook-political-ads-lies.html BTP6-ZFH2].announced that it would pro- Later, in September 2020, Facebook the hibit new political advertisements from running in the seven days before general election. W Facebook Tries to Head Off Election Turmoil, Angering Both Trump and Democrats Zuckerberg stated, “[w]hen [it’s] not absolutely clear what to do, Zuckerberg stated, “[w]hen [it’s] expression.” we should err on the side of greater - So, CNBC (Oct. 30, 2019, 4:05 PM), https://www.cnbc.com/2019/10/30/twit / ter-bans-political-ads-after-facebook-refused-to-do-so.html [https://perma.cc XHG8-SX4B]. Grinberg, lowing Lies in Political Ads, N.Y. T Debate, 74 N.Y.U. A - www.nytimes.com/2018/09/04/technology/alex-jones-infowars-bans-traf ]. fic.html [https://perma.cc/5LFW-2Y4U In other words, content moderation algorithms are far more algorithms are moderation words, content In other code. than just computer \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown Seq: 29 15-FEB-21 11:00 2021] 2021] and violent and hate speech of prohibiting policy Facebook’s - con that such view the company’s expresses content graphic “objectionable.” tent is ogy/2020/09/03/facebook-political-ads/ [https://perma.cc/QSJ7-QW94]. announcing this policy, Facebook communicated its commit- policy, Facebook communicated announcing this individual autonomy in ascer- ment to freedom of speech and taining fact from fiction. nity Standards, which it implements through its content through it implements which nity Standards, that the demonstrate and algorithms, practices moderation violence values discouraging company defended the policy, arguing that Facebook “should not be the defended the policy, arguing its users’ speech.” one to make decisions about entire world, that the company maintains a certain viewpoint the company maintains entire world, that or topic—orabout an idea even a single word. As such, those government in- protected speech, guarded from algorithms are censorship. tervention and that it would allow after Facebook announced abundantly clear election. ahead of the 2020 false political advertisements C Y 42993-crn_106-2 Sheet No. 94 Side A No. 94 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 94 Side B 03/12/2021 06:20:48 R R R M K C Y (May 26, Ghaffary, 138 WITTER (Oct. 30, 2019), [Vol. 106:457 106:457 [Vol. Ex-Officer Charged in WITTER (May 26, 2020, 8:17 AM), (May 29, 2020), https:// (Oct. 30, 2019, 4:05 PM), The next day, in the The next day, (Oct. 30, 2019, 5:33 PM), IMES 141 IMES WITTER WITTER note 136. Some Republicans viewed , N.Y. T see also Kate Conger, Twitter Will Ban , N.Y. T supra - , https://business.twitter.com/en/help/ads WITTER CORNELL CORNELL LAW REVIEW note 23. Twitter CEO Jack Dorsey took a public stand Dorsey took a public stand Twitter CEO Jack supra 140 Trump infamously tweeted that Black Lives Matter tweeted that Black Lives Trump infamously Fung, Exec. Order No. 13,925, 85 Fed. Reg. 34,079 (May 28, 2020); After Trump tweeted that “[t]here is NO WAY (ZERO!) NO WAY (ZERO!) that “[t]here is tweeted After Trump 142 See, e.g., Brad Parscale (@parscale), T Donald J. Trump (@realDonaldTrump), T Donald J. Trump (@realDonaldTrump), See Neil MacFarquhar, Tim Arango & Manny Fernandez, See See Political Content, T note 26.Twitter “selectively decides to place a The order claimed that 139 In late May 2020, Twitter made the unprecedented decision decision made the unprecedented 2020, Twitter In late May 140 141 142 139 138 protesters were “THUGS” and that he “[j]ust spoke to [Minne- “THUGS” and that he “[j]ust protesters were told him that the Military is with sota] Governor Tim Walz and him all the way. control but, Any difficulty and we will assume supra bias.” warning label on certain tweets in a manner that clearly reflects political Exec. Order No. 13,925. Death of George Floyd in Minneapolis [https:// https://twitter.com/realDonaldTrump/status/1265255835124539392 perma.cc/QYD9-P7SY]; Donald J. Trump (@realDonaldTrump), T aftermath of the killing of George Floyd by a Minneapolis police killing of George Floyd by a aftermath of the officer, - https://www.nytimes.com/2019/10/30/technology/twitter-political-ads ]; jack (@jack), T ban.html [https://perma.cc/X2RV-2K2U www.nytimes.com/2020/05/29/us/minneapolis-police-george-floyd.html www.nytimes.com/2020/05/29/us/minneapolis-police-george-floyd.html [https://perma.cc/Q9L3-JBHG]. against Trump’s use of the platform as a megaphone for his use of the platform as a against Trump’s with the truth.tenuous relationship Two days later, Trump censorship” in order targeting “online signed an executive Twitter six times. which he referenced \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown Seq: 30 486 15-FEB-21 11:00 Facebook’s decision not to fact-check political advertisements, advertisements, political fact-check not to decision Facebook’s message—thatits own expressed Twitter to not want it does of misinformation—by to the spread contribute a implementing advertisements. all political policy to prohibit contrary policies/prohibited-content-policies/political-content.html [https://perma.cc/ policies/prohibited-content-policies/political-content.html H2YW-2DAY] (last visited Jan. 20, 2021); All Political Ads, C.E.O. Jack Dorsey Says https://twitter.com/parscale/status/1189656652250845184 [https:// https://twitter.com/parscale/status/1189656652250845184 perma.cc/BP5U-KQY5]. [https://perma.cc/ https://twitter.com/jack/status/1189634360472829952 reach should be earned, not bought.”). LYR3-TKYK] (“We believe political message Jack Dorsey said, “it would be ‘not credi- In announcing the policy, Twitter CEO to stopping the spread of misinforma- ble’ for Twitter to tell users it’s committed users with political ads just because tion while allowing advertisers to target they’ve paid Twitter to do so.” Feiner, Twitter’s policy as “another attempt by the left to silence Trump and conserva- Twitter’s policy as “another attempt by tives.” to flag two of Donald Trump’s tweets as “potentially mislead - as “potentially Trump’s tweets two of Donald to flag ing.” 2020, 8:17 AM), https://twitter.com/realDonaldTrump/status/12652558 45358645254 [https://perma.cc/M73E-PF7W]. that Mail-In Ballots will be anything less than substantially will be anything less that Mail-In Ballots fraudulent,” 42993-crn_106-2 Sheet No. 94 Side B No. 94 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 95 Side A 03/12/2021 06:20:48 487 487 He ex- 146 In spite of the of In spite 143 supra. The tweet remained (May 29, 2020, 12:53 AM), The controversy sur- The controversy WITTER 147 Conger, To CNBC, Zuckerberg said, To CNBC, Zuckerberg See 145 / (May 30, 2020), https://www.nytimes.com IMES COMPELLING CODE CODE COMPELLING (May 29, 2020, 6:00 AM), https://www.theverge.com/ , N.Y. T ERGE , V 144 Twitter Had Been Drawing a Line for Months see also Kate Conger, Twitter Had Been Drawing a Line for Id.; Casey Newton, Why Twitter Labeled Trump’s Tweets as Misleading and Id. Id. Donald J. Trump (@realDonaldTrump), T Donald J. Trump (@realDonaldTrump), Social media companies’ content moderation decisions Social media companies’ content Meanwhile, Mark Zuckerberg explained, “We have a differ- “We have explained, Mark Zuckerberg Meanwhile, M K 145 146 147 143 144 “I think that’s kind of a dangerous line to get down to, in terms of a dangerous line to get “I think that’s kind is true and what isn’t.of deciding what And I think political a democracy. the most sensitive parts of speech is one of And say.” be able to see what politicians people should accessible to viewers who opted to “View” the message. - 2020/05/30/technology/twitter-trump-dorsey.html [https://perma.cc/2P9L a WFYW] (detailing the internal debate at Twitter that led to the decision to apply warning label to Trump’s tweets). was the first time that Twitter applied such This a warning to any tweet by a public figure. rounding false political advertisements and fact-checking and political advertisements and rounding false the two very dif- president’s tweets elucidates hiding a sitting of Twitter and Facebook.ferent “personalities” (or messages) It users, through the companies’ is therefore quite apparent to and the statements of their CEOs content moderation decisions Twitter is concerned with maxi- explaining such decisions, that hate, violence, and harassment, mizing truth and minimizing to near-absolute freedom of while Facebook is dedicated speech. aftermath of the attack on the again took the spotlight in the U.S. Capitol on January 6, 2021. met to That day, as Congress presidential election, a violent certify the results of the 2020 mob of Donald Trump’s supporters––provoked by his un- election had be stolen from founded claims that the When Trump Crossed It Facebook Didn’t [https:// https://twitter.com/realDonaldTrump/status/1266231100780744704 perma.cc/H34R-6K4L]. - interface/2020/5/29/21273370/trump-twitter-executive-order-misleading facebook-authoritarianism [https://perma.cc/3MS2-NPBZ]. \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown Seq: 31 15-FEB-21 11:00 2021] 2021] starts.” shooting the starts, the looting when - explain view, from the tweet hid Twitter order, executive recent glorifying Rules about the Twitter it “violated ing that violence.” ent policy than, I think, Twitter on this . . . . Twitter on than, I think, ent policy believe I just of truth of eve- shouldn’t be the arbiter strongly that Facebook say online.” rything that people plained that Facebook’s “policies are grounded in trying to give “policies are grounded plained that Facebook’s voice as possible.” people as much C Y 42993-crn_106-2 Sheet No. 95 Side A No. 95 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 95 Side B 03/12/2021 06:20:48 R R R , , M K C Y IMES , N.Y. , N.Y. T (Jan. 8, 2021), [Vol. 106:457 106:457 [Vol. LOG B Snapchat, YouTube, Annie Karni & Maggie As of the publication (Jan. 6, 2021), https:// (Jan. 6, 2021), https:// See Twitter and Facebook Lock WITTER IMES Throughout the day, the Throughout , T IMES 148 Jack Nicas & Davey Alba, Amazon, , N.Y. T Eventually, after hours of violence, , N.Y. T note 79 (describing the attack on the note 79 (describing See See id. note 149. (Jan. 10, 2021), https://www.nytimes.com/ (Jan. 10, 2021), Facebook Bars Trump Through End of His Term IMES Facebook blocked Trump from its plat- from its blocked Trump Facebook Incitement to Riot? What Trump Told Supporters Before Incitement to Riot? CORNELL CORNELL LAW REVIEW note 151. Apple and Google In the days that followed, 151 Nicholas Fandos, Trump Impeached for Inciting Insurrection Initially, Twitter suspended his account for twelve for twelve his account Twitter suspended Initially, See Explaining the decision, which perhaps represents a decision, which perhaps represents Explaining the two days later, however, it decided to permanently to permanently it decided later, however, two days Trump Openly Condones Supporters Who Violently Stormed the Capi- Trump Openly Condones Supporters Who / (Jan. 8, 2021), https://www.nytimes.com/2021/01/08/technology Dozier & Bergengruen, supra Dozier & Bergengruen, Kate Conger, Mike Isaac & Sheera Frenkel, Kate Conger, Mike Isaac & Sheera Frenkel, (Jan. 7, 2021), https://www.nytimes.com/2021/01/07/technology/ 149 150 152 / (Jan. 13, 2021), https://www.nytimes.com/2021/01/13/us/politics Mike Isaac & Kate Conger, Conger, Isaac & Frenkel, supra Permanent Suspension of @realDonaldTrump See See IMES IMES IMES 152 150 151 149 148 - www.nytimes.com/2021/01/06/technology/capitol-twitter-facebook [https://perma.cc/FHN3-L3FQ]. trump.html video message to his supporters telling Trump issued a lukewarm pre-recorded to “go home.” them “we love you” but that it was time hours; https://blog.twitter.com/en_us/topics/company/2020/suspension.html https://blog.twitter.com/en_us/topics/company/2020/suspension.html [https://perma.cc/776T-TXYW]. The ban applied not only to the @realDonald- Twitter account which he used Trump account (Donald Trump’s personal capacity), but also to any tweets shared throughout his time in office in an official the official @POTUS Twitter account.by him from other accounts, including Kate Online Revolt Conger & Mike Isaac, Twitter Permanently Bans Trump, Capping N.Y. T ban him from the platform “due to the risk of further incite- the risk of further “due to from the platform ban him violence.” ment of N.Y. T Capitol); Charlie Savage, Capitol); Charlie Savage, , N.Y.Mob Stormed Capitol T trump-impeached.html [https://perma.cc/3WD5-KVGH]. trump-impeached.html of this Note, Trump faces a Senate trial that could result in his prohibition from of this Note, Trump faces a Senate trial ever holding public office in the future. [https:// www.nytimes.com/2021/01/06/us/politics/trump-protesters.html perma.cc/NQB3-9KRG]. - (Jan. 9, 2021), https://www.nytimes.com/2021/01/09/technology/apple [https://perma.cc/MT4N-VNF7].google-parler.html Amazon also removed the for platform from its web-hosting service (thus forcing the site temporarily offline) \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown Seq: 32 488 15-FEB-21 11:00 him––stormed building. Capitol the forms at least through the end of his term (January 20, through the end of his term forms at least 2021). ] (docu- [https://perma.cc/9X2E-SRRU 2021/01/10/us/trump-speech-riot.html before the riot, inflammatory messages to his supporters menting Donald Trump’s strength” and that if had to “fight much harder” and “show including that they a country anymore”). hell, [they were] not going to have they didn’t “fight like for his second im- the Capitol attack became grounds Trump’s role in inciting peachment. T facebook-trump-ban.html [https://perma.cc/JDK2-KH7J]. facebook-trump-ban.html Twitch, and Reddit also limited the former president’s access to their platforms. Twitch, and Reddit also limited the former president’s access to their platforms. Conger & Isaac, supra removed Parler (a far-right social networking app notorious for its lack of content in moderation and popular among Trump’s supporters, including some involved the Capitol attack) from their app stores. Apple and Google Cut off Parler, an App that Drew Trump Supporters ]. twitter-trump-suspended.html [https://perma.cc/5H5G-E5QJ Trump inflammatory inaccurate and a string of “published lock his ac- Facebook to Twitter and that prompted messages” counts. Haberman, tol, Prompting Twitter to Lock His Account Trump’s Accounts After Violence on Capitol Hill Trump’s Accounts After Violence on Capitol 42993-crn_106-2 Sheet No. 95 Side B No. 95 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 96 Side A 03/12/2021 06:20:48 R R EWS 489 489 N EED F UZZ , B In addition, In addition, 156 (Mar. 16, 2020, 8:13 PM), Internet Speech Will Never Go - Google, Twit Facebook, WITTER 155 See id.; John Paczkowski & Ryan Mac, Donald Trump Jr. and Senator Donald Trump 157 . (last updated Jan. 18, 2021, 10:26 AM), https:// . (last updated Jan. 18, 2021, 10:26 AM), note 152. US 154 COMPELLING CODE CODE COMPELLING (Apr. 20, 2020, 3:16 PM), https://www.reuters.com/ (Apr. 25, 2020), https://www.theatlantic.com/ideas/ (Apr. 25, 2020), https://www.theatlantic.com/ideas/ Parler’s Website Is Back Online, but App Still Not in EUTERS TLANTIC - (Jan. 17, 2021, 6:20 PM), https://www.reuters.com/article/us Parler’s Website Shows Signs of Life with a Brief Message Brian Fung, Parler’s Website Shows Signs of Life with Mark Zuckerberg said, “We believe the risks of allowing of allowing the risks believe said, “We Zuckerberg Mark EUTERS See Google Public Policy (@googlepubpolicy), T Google Public Policy (@googlepubpolicy), Elizabeth Culliford, Facebook Removes Anti-Quarantine Protest Events in See supra notes 142–144. Isaac & Conger, supra Jack Goldsmith & Andrew Keane Woods, 153 The coronavirus pandemic also exposed the expressive the expressive also exposed pandemic The coronavirus M K 156 157 153 154 155 the president to continue to use our service during this period service during to use our to continue the president too great.” are simply ter, YouTube, and other industry leaders issued a joint state- and other industry leaders issued ter, YouTube, COVID-19 ] closely together on to “work[ ment pledging stay connected to help “millions of people response efforts” about combating fraud and misinformation while also jointly our platforms, and authoritative content on the virus, elevating with government updates in coordination sharing critical around the world.” healthcare agencies Some U.S. States, R [https:// https://twitter.com/googlepubpolicy/status/1239706347769389056 perma.cc/8LVW-DHY8]. Amazon Will Suspend Hosting for Pro-Trump Social Network Parler Amazon Will Suspend Hosting for Pro-Trump permitting posts that encouraged violence. permitting posts that encouraged violence. - (Jan. 9, 2021, 9:07 PM), https://www.buzzfeednews.com/article/johnpaczkow [https:// ski/amazon-parler-aws?bftwnews&utm_term=4ldqpgc#4ldqpgc story).the (breaking perma.cc/W6BP-B2HL] As of January 17, 2021, Parler was service but was still absent from the app back online after finding a new hosting stores. to ‘Lovers and Haters’, CNN B \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown Seq: 33 15-FEB-21 11:00 archive/2020/04/what-covid-revealed-about-internet/610549/ [https:// archive/2020/04/what-covid-revealed-about-internet/610549/ collaboration by social media platforms to perma.cc/NZ5B-FSYV] (describing the the coronavirus” and warning, as has the “censor harmful information related to the use of such practices after the crisis Electronic Frontier Foundation, that and authoritarian control over digital subsides risks intrusion into digital liberties speech). 2021] 2021] over “personality” moderation content in Facebook’s shift time, - parler-website/parlers-website-is-back-online-but-app-still-not-in-stores ]. idUSKBN29M0QU [https://perma.cc/V8EV-M4J4 www.cnn.com/2021/01/17/tech/parler-back-online/index.html [https:// www.cnn.com/2021/01/17/tech/parler-back-online/index.html perma.cc/2TW6-B7UV]; Stores, R power of content moderation, as tech companies worked in companies as tech content moderation, power of to combat misinformation. tandem Facebook has taken steps to interfere with anti-quarantine and steps to interfere with anti-quarantine Facebook has taken protests. social-distancing - article/us-health-coronavirus-usa-facebook/facebook-removes-anti-quarantine - protest-events-in-some-us-states-idUSKBN2222QK [https://perma.cc/DW3T (“‘UnlessWKGX] we allow it to be government prohibits the event during this time, organized on Facebook,’ said Facebook spokesman Andy Stone. ‘For this same al- reason, events that defy government’s guidance on social distancing aren’t lowed on Facebook.’ . . . told ABC News on Monday that content Mark Zuckerberg suggesting social distancing would not be effective in stopping the virus’s spread would be removed as it would ‘classify as harmful misinformation.’”). Back to Normal, A C Y 42993-crn_106-2 Sheet No. 96 Side A No. 96 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 96 Side B 03/12/2021 06:20:48 R R R R M K C Y Specifically, Specifically, and Senator and Senator [Vol. 106:457 106:457 [Vol. Algorithms re- 159 158 - content modera Sofia Grafanaki 162 As Eugene Volokh As Eugene Volokh 163 (Apr. 20, 2020, 1:08 PM), 161 WITTER (Apr. 2020, 10:59 AM), https://twit- WITTER (Apr. 20, 2020, 11:34 AM), https:// (Apr. 20, 2020, 11:34 AM), note 129, at 888–89. outside First Amendment protection, see Grafanaki, note 129, at 888–89. For an argument that machine- OLITICO CORNELL CORNELL LAW REVIEW note 129, at 115. , P Therefore, tech companies, as private actors, Therefore, tech companies, supra In his tweet, Senator Hawley either misunder - Hawley either tweet, Senator In his 164 160 Volokh & Falk, supra Volokh & Falk, supra Id. Grafanaki, k as Network Shuts Down Anti- Steven Overly, Republicans Attack Faceboo T Donald Trump Jr. (@DonaldJTrumpJr), Josh Hawley (@HawleyMO), T note 129, at 145–46 nature of machine-learning algorithms is such (“The Although algorithms result in automated Although algorithms down Protests 161 162 163 164 158 159 160 [https://perma.cc/9829- ter.com/HawleyMO/status/1252250453221523456 A6XC]. Trump Jr. tweeted, “Why is @Facebook colluding with state state with colluding is @Facebook “Why tweeted, Jr. Trump speech?” people[‘]s free to quash governments stands or misrepresents the fact that the removal of protest the removal the fact that or misrepresents stands users’ does not implicate a private actor, Facebook, events from rights at all.First Amendment On the other hand, any attempt to do so impli- to regulate Facebook’s ability by the government First Amendment rights.cates the company’s Opinions on the Facebook’s own decision aside, it reflects wisdom of Facebook’s harmful. were objectionable or view that the protests reduce the First such “automation does not tion decisions, afforded” them. Amendment protection learning renders algorithms are so that they are constantly changing and adjusting to new inputs in ways that complex, that they often go beyond the comprehension of their designers. It to would be very odd, to say the least, to grant the same protection we give be ex- political speech to algorithmic processes and outputs that cannot even plained by their own designers.”). Lock supra - www.politico.com/news/2020/04/20/facebook-shuts-down-anti-quarantine https://perma.cc/8M87-NMC7] (“Donald protests-at-states-request-196143 [ were among the conservatives blasting Trump Jr. and Sen. Josh Hawley (R-Mo.) Facebook over its decision.”). [https:// https://twitter.com/DonaldJTrumpJr/status/1252283059845640192 perma.cc/TC9L-LMJ2]. \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown Seq: 34 490 15-FEB-21 11:00 Hawley criticized these actions by Facebook. these actions criticized Hawley has also argued that content moderation algorithms that “de- has also argued that content allow on the platform” and “per- cide what content to censor or role” are protected by the First form a somewhat editorial Amendment. flect “[t]hese human editorial judgments.” flect “[t]hese human editorial Hawley tweeted, “Because free speech is now illegal speech is now free tweeted, “Because Hawley America?” and Donald M. Falk argue, algorithms remain protected by the Falk argue, algorithms remain and Donald M. are written by humans who First Amendment because they of content. make decisions about the value 42993-crn_106-2 Sheet No. 96 Side B No. 96 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 97 Side A 03/12/2021 06:20:48 R 491 491 Notably, the 166 . (Apr. 9, 2019), https:// (July 10, 2019), https:// NST I LOG Why the Government Should Not ATO , C L. B ARKETING . & M COMPELLING CODE CODE COMPELLING ECH note 42. Alternatively, such companies would have to Alternatively, such companies 168 supra see also S. 1914, 116th Cong. (2019). 165 The bill, which requires companies to project a mes- The bill, which requires companies Eric Goldman, Comments on Sen. Hawley’s “[Ending] Support for In- Stern, As a result, companies that fail to earn Section 230 that fail to earn Section As a result, companies 169 Compelling the Message of Neutrality of Neutrality the Message Compelling See Rumsfeld v. Forum for Acad. & Inst. Rights, Inc., 547 U.S. 47, 61–62 See See See id.; at 136 (“[T]he idea that computer code is a type of speech has See id. at 136 (“[T]he idea that computer code 167 In short, Senator Hawley’s legislation favors politically In short, Senator Hawley’s - Act impermis Internet Censorship Support for The Ending B. M K 166 167 168 169 165 (1977) (“The First Amendment protects the right of individuals to hold a point of (1977) (“The First Amendment protects find view different from the majority and to refuse to foster . . . an idea they morally objectionable.”). sage of neutrality in order to receive Section 230 immunity, is sage of neutrality in order to therefore presumptively unconstitutional. - blog.ericgoldman.org/archives/2019/07/comments-on-sen-hawleys-ending support-for-internet-censorship-act.htm [https://perma.cc/X35N-XZTD]. - www.cato.org/publications/policy-analysis/why-government-should-not-regu [https://perma.cc/5ASY-T72H] (“Social late-content-moderation-social-media are not constrained by the First Amend- media are not government and hence ment. apply These platforms are protected by the First Amendment but need not Wooley v. Maynard, 430 U.S. 705, 715 it to speech by their users.”); see also (explaining that laws that have been declared unconstitutional are those which (explaining that laws that have been declared unconstitutional are those “dictate the content of the speech”). ternet Censorship Act”, T received considerable support.”); John Samples, received considerable support.”); John Media Regulate Content Moderation of Social restructure their entire business models in order to comply restructure their entire business with the criteria for immunity. completely Meanwhile, receive immunity. nonpolitical companies would that indicate any form of bias neutral companies over ones candidate, or political view- against “a political party, political point.” \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown Seq: 35 15-FEB-21 11:00 2021] 2021] moderation content to their right Amendment a First have algorithms. sibly compels big tech companies to “speak” a certain message “speak” a certain companies to big tech sibly compels content moderation practices. through their absence of a political slant is a message in itself. slant is a message in absence of a political Specifically, the criteria for companies that do not meet the bill would force in order to ensure to modify their algorithms FTC certification of all political bias.that they are devoid - By imposing the re neutral, the content moderation be politically quirement that practices and algo- whose moderation bill disfavors companies ounce of a political slant—inrithms have any direc- either tion. immunity would face immense potential liability for user-gen- face immense potential liability immunity would lawsuits,” even if they ulti- erated content, risking “crippling mately prevail. C Y 42993-crn_106-2 Sheet No. 97 Side A No. 97 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 97 Side B 03/12/2021 06:20:48 R M K C Y 171 [Vol. 106:457 106:457 [Vol. (to the extent that they do so in the 173 —is to the Internet context. inapplicable CORNELL CORNELL LAW REVIEW 172 Senator Hawley’s bill fails both the compel- fails both the Hawley’s bill Senator 170 Senator Hawley’s Bill Cannot Survive Strict Scrutiny Scrutiny Strict Survive Cannot Bill Hawley’s Senator Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015). Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, See supra subpart II.C. See supra note 86 and accompanying text (explaining that Senator Second, the imposition of a political neutrality requirement Second, the imposition of a political First, the asserted interest in ending the alleged suppres- interest in ending the alleged First, the asserted Any regulation that restricts protected speech based on the speech based protected that restricts Any regulation C. 170 171 172 173 Assuming that the scarcity inherent in broadcast was sufficient Assuming that the scarcity inherent into public discourse in spite to justify government intervention First Amendment rights, there is of private broadcaster’s own interference into speech no comparable defense for government number of voices have unlim- on the Internet, where an infinite ited space to speak. government to There is no need for the an equal opportunity to express ensure that all viewpoints have their message on the Internet—that is inherent in assurance the Internet itself. and the govern- The Internet is boundless, tell Facebook that it must host ment may not, for example, of its Community Stan- speech that it considers in violation dards. and no Facebook is a private, nongovernmental actor, one is entitled to use its platform. moderation policies and algo- on big tech companies’ content to achieving Senator Hawley’s rithms is not narrowly tailored bias on social me- stated goal of eliminating anticonservative dia. Hawley While such a requirement would appease Senator and his supporters by preventing companies from removing “conservative content” 581 (1995). con- Hawley’s primary concern regarding Big Tech is its alleged censorship of servative viewpoints). ling interest and the narrow tailoring requirements. the narrow tailoring requirements. ling interest and is not a com- voices by big tech companies sion of conservative interest.pelling governmental It is well-settled that does not legiti- of a private speaker’s statement “[d]isapproval speaker to alter power to compel the mize use of [government] to others.” including one more acceptable the message by As previously argued, the government’s interest in ensuring argued, the government’s interest As previously despite a scar- of controversial issues robust public discussion frequencies—assertedcity of broadcast for the as justification Fairness Doctrine \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown Seq: 36 492 15-FEB-21 11:00 speaker to or compels a expressed, of the message content to serve a tailored must be narrowly a certain message, express constitu - order to pass interest in governmental compelling tional muster. 42993-crn_106-2 Sheet No. 97 Side B No. 97 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 98 Side A 03/12/2021 06:20:48 R 493 493 (Oct. 12, ACEBOOK , F Facebook Bans Holocaust In October 2020, Facebook In October 2020, 175 ––wouldHawley’s bill Senator 176 (Oct. 12, 2020), https://apnews.com/article/elec- COMPELLING CODE CODE COMPELLING RESS P note 42. Must Facebook leave “bigoted ideas promoted by ideas promoted leave “bigoted Must Facebook SSOCIATED 174 supra keep its Section 230 immunity at the same time. and keep its Section 230 immunity Stern, Id. Monika Bickert, Removing Holocaust Denial Content Presumably, even if Congress adopted a “Fairness Doctrine Presumably, even if Congress version of Senator Hawley’s Even a potentially less extreme M K 174 175 176 updated its “hate speech policy to prohibit content that denies speech policy to prohibit content updated its “hate Holocaust” or distorts the the National Fascist Party” and “violent ideas touted by the Party” and “violent ideas the National Fascist untouched? Communist Party” \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown Seq: 37 15-FEB-21 11:00 2021] 2021] this.far beyond goes the bill place), first to the due In part viewpoint,” “political term undefined of the ambiguity extreme ability only a company’s to affect not has the potential the bill of other its moderation but also political content to remove objectionable content. no longer “[c]an Facebook For example, the Nazis—whichposts endorsing censor - all, a politi are, after cal party?” force Facebook to rescind that policy in order to keep its immu- to rescind that policy in order force Facebook nity? to the January 2021 bill had become law prior If the have been would social media companies Capitol insurrection, armed support- back as Donald Trump and his required to sit violence and platforms to incite and coordinate ers used their and Representatives, the Vice endanger United States Senators D.C., and American President, the city of Washington democracy? to leave Facebook the ability to for the Internet,” we would want that posted by groups that may remove hate speech, including or represent a “political view- technically be “political parties” point.” com- Senator Hawley’s legislation would interfere with political figures whose speech panies’ ability to remove extreme for example, their policies against they consider in violation of, hate speech and violent content. could not, as it Facebook wants its business to embody, manages the platform that it speech policy (or remove or flag ban Alex Jones under its hate and encouraging violence at the posts claiming election fraud Capitol) tailored; rather, it is severely Therefore, the bill is not narrowly far more speech than is nec- overinclusive in that it implicates end. essary to achieve its desired an exception for content removal bill, such as one that left open under hate speech, harassment, and similar policies, would Denial Posts, A - 2020), https://about.fb.com/news/2020/10/removing-holocaust-denial-con tent/ [https://perma.cc/7WMY-DNHU]; Matt O’Brien, tion-2020-media-social-media-elections-mark-zuckerberg- 14e8073ce6f7bd2a674c99ac7bbfc240 [https://perma.cc/9ZY5-TL39]. C Y 42993-crn_106-2 Sheet No. 98 Side A No. 98 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 98 Side B 03/12/2021 06:20:48 R R M K C Y [Vol. 106:457 106:457 [Vol. A thorough critique of the order is an 179 CORNELL CORNELL LAW REVIEW note 42. supra - con aimed at amplifying transparently any bill not just in an election year, and would run afoul of not just in an election year, Stern, Exec. Order No. 13,925, 85 Fed. Reg. 34,079 (May 28, 2020). 177 178 See infra notes 15–20 text (explaining support from and accompanying See See Relatedly, former President Trump’s May 2020 Executive Relatedly, former President Trump’s A version of the political neutrality requirement that may A version of the political neutrality 177 178 179 the tech companies’ First Amendment rights by dictating the the tech companies’ First Amendment their sites. content that must appear on represents a potentially Order on Preventing Online Censorship back social media compa- more feasible approach to scaling of nies’ immunity, though one that is also motivated by notions anticonservative bias. servative viewpoints is likely to face significant political face significant is likely to viewpoints servative obstacles. to a political speech exception a hate In addition, Hawley achieve Senator is unlikely to requirement neutrality could ex- desired end, as tech companies and his supporters’ to remove “con- speech policies and continue pand their hate under those provisions.servative content” Similarly, a more greater showing of of the bill that required a moderate version viewpoint might political party, candidate, or bias against a fail. tailoring but would still inch closer to narrow For example, targeted bias over requiring a showing of highly even a version removing hateful would prevent platforms from a period of time harassment by or long-term, politically-tinged Nazi propaganda a single person or group. would also Furthermore, that version interest for the reasons de- lack a compelling governmental scribed above. scrutiny would be one that come closest to satisfying strict content related to an up- prevented platforms from removing themselves.coming election or to the candidates Under this company would hypothetically highly limited version, a tech for example, by removing con- lose its Section 230 immunity, favored candidate.tent that opposed the company’s This too, support from those concerned however, would fail to gain and misinformation, about election-related disinformation central objective of com- would stray from Senator Hawley’s censoring conservative view- pletely preventing platforms from points, Democratic senators for cracking down on Big Tech). \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown Seq: 38 494 15-FEB-21 11:00 - govern a compelling lack of for scrutiny fail strict nonetheless interest.mental to garner may be able such a bill Although col- Hawley’s Democratic from Senator support more political leagues, undertaking for another time and place. In short, however, the lia- order narrowly interprets Section 230 as providing “limited 42993-crn_106-2 Sheet No. 98 Side B No. 98 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 99 Side A 03/12/2021 06:20:48 R R R 495 495 In the or- 184 230(c)(2), the order 230(c)(2), In fact, Justin Brook- In fact, Justin 183 182 185 - and miscon Misinterpreting 180 By contrast, platforms would lose their would lose platforms By contrast, COMPELLING CODE CODE COMPELLING Id. 181 note 24. supra Exec. Order No. 13,925. argument, see Citron & Wittes, For a similar Id. Id. See supra note 24–27. Swartz, Exec. Order No. 13,925. this point to emphasize that plat- The order uses In sum, Senator Hawley’s legislation is presumptively un- In sum, Senator Hawley’s legislation With the same end in sight as Senator Hawley’s bill, the end in sight as Senator Hawley’s With the same M K 180 181 182 183 184 185 man, director of consumer privacy and technology policy for of consumer privacy and technology man, director fact check by Twitter is an edito- Consumer Reports, stated, “A First Amendment.” rial decision protected by the note 48, at 416 (arguing that Section 230 “should be read to apply only to supra note 48, at 416 (arguing that Section 230 “should be read to apply only to good Good Samaritans envisioned by its drafters: providers or users engaged in faith efforts to restrict illegal activity”). that forms should be “exposed to liability like any traditional editor and publisher is not an online provider.” \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown Seq: 39 15-FEB-21 11:00 2021] 2021] ‘protection’”bility interactive and other platforms to online in “‘Good engage that providers service computer Samaritan’ of harmful content. blocking” protection if they “engage in deceptive or pretextual actions “engage in deceptive or protection if they to stifle view- to their stated terms of service) (often contrary they disagree.” points with which struing the “Good Samaritan” provision in § provision the “Good Samaritan” struing deci- content moderation must make that companies claims the stat- within order to be considered “good faith” in sions in harbor. ute’s safe constitutional because it compels speech on the part of tech constitutional because it compels to remove all semblance of companies, which would be forced content moderation practices and political viewpoint from their content moderation algorithms policies as well as rewrite their immunity.in order to obtain Section 230 the bill Furthermore, because it does not serve a com- cannot survive strict scrutiny and—evenpelling governmental interest, if preventing anticon- were a compelling interest—theservative bias on social media serve that interest.bill is not narrowly tailored to More genera- such as the one taken in the lized attacks on Section 230, demanding or “tailored” ver- executive order, as well as more neutrality requirement are sions of Senator Hawley’s political upon tech companies’ similarly unconstitutional infringements First Amendment rights. order appears to be an expansion on Senator Hawley’s efforts, to be an expansion on Senator order appears and,media companies’ own bill, it infringes on social like the criticized as rights and has been similarly First Amendment and unenforceable. unconstitutional der itself, Trump acknowledged that content moderation der itself, Trump acknowledged decisions are “editorial conduct.” C Y 42993-crn_106-2 Sheet No. 99 Side A No. 99 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 99 Side B 03/12/2021 06:20:48 R R R M K C Y (Apr. ORKER An- Y ERGE 187 EW , V , N in fact, con- [Vol. 106:457 106:457 [Vol. 186 Yet another argued Yet another argued 188 . (Dec. 4, 2018, 6:00 AM), https:// Are Google and Facebook Really Sup- ECH / . (Apr. 9, 2019), https://www.eff.org : T OUND F UARDIAN RONTIER F note 42 (calling the idea that big tech is biased against note 42 (calling the idea that big tech CORNELL CORNELL LAW REVIEW Given Senator Hawley’s unsupported yet ve- Given Senator Hawley’s unsupported note 79. note 186. supra 189 supra LECTRONIC supra Ingram, Platform Liability Doesn’t—and Shouldn’t—Depend on Content Modera- from its advertising program, despite internal program, despite internal Breitbart from its advertising The Real Bias on Social Networks Isn’t Against Conservatives Unconstitutionality . . . and Beyond Beyond . . . and Unconstitutionality Newton, Edelman, Sue Halpern, The Search for Anti-Conservative Bias on Google See In addition, “political neutrality” is a subjective determina- In addition, “political neutrality” If the unconstitutionality of a political neutrality require- neutrality of a political If the unconstitutionality D. 187 188 189 186 - deeplinks/2019/04/platform-liability-doesnt-and-shouldnt-depend-content ] (“[W]e don’t see evidence of moderation-practices [https://perma.cc/NQG8-ZCPN systemic political bias against conservatives. In fact, the voices that are silenced or less-powerful people.”); Casey more often belong to already marginalized Newton, - www.theguardian.com/technology/2018/dec/04/google-facebook-anti-con servative-bias-claims [https://perma.cc/LC3X-UYJ4] (quoting scholars who note to that claims of anticonservative bias are “anecdotal,” and there is no reason “very doubt companies’ emphatic denials of bias in their algorithms, which are complex and not at all intuitive”). conservatives a “conspiracy theory” promoted by alt-right groups and mainstream conservatives a “conspiracy theory” promoted lack of evidence”); India McKinney & Elliot conservatives “despite an almost total Harmon, tion Practices, E hement accusations against big tech, his bill seems to be more hement accusations against big big tech than a sincere effort of an uninformed vendetta against with the Internet. to cure the genuine ills associated for the government to tion that is especially inappropriate - (Dec. 19, 2018), https://www.newyorker.com/tech/annals-of-technology/the ]. search-for-anti-conservative-bias-on-google [https://perma.cc/N865-YCC4 \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown Seq: 40 496 15-FEB-21 11:00 the idea is not enough, Amendment was the First ment under ways. of other flawed in a number deeply At its threshold, erroneous—or based on the Hawley’s bill is Senator at the very least unsubstantiated—belief- are cen big tech companies that voices on their platforms.soring conservative As many critics is no evidence of such bias; have noted, there servative news outlets tend to perform well on social media outlets tend to perform well servative news platforms. typically gets more One journalist noted, “Fox News publisher.” Facebook than any other engagement on / 11, 2019, 6:00 AM), https://www.theverge.com/interface/2019/4/11 [https:// 18305407/social-network-conservative-bias-twitter-facebook-ted-cruz showing a lack of evidence of anticonserva- perma.cc/AC2U-THNR] (citing studies tive bias on social media); Oscar Schwartz, pressing Conservative Politics?, G that Google’s decision not to remove the right-wing news decision not to remove the that Google’s source “concerned that that Google employees were emails showing speech and fake news . . . should Breitbart was a source of hate know about Google’s anti-con- tell us everything we need to servative bias.” other explained that “YouTube’s recommendation algorithm that “YouTube’s recommendation other explained for right-wing channels.” has been great 42993-crn_106-2 Sheet No. 99 Side B No. 99 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 100 Side A 03/12/2021 06:20:48 R R R R . TR In 497 497 , C 193 era, in note 167 (arguing that supra 192 note 51, at 6. Furthermore, enforcement of the enforcement Furthermore, supra note 94 (stating that “neutral moderation supra 191 COMPELLING CODE CODE COMPELLING note 120 (explaining that “there’s no blue-ribbon test note 120 (explaining that “there’s no note 99; see also Goldman, supra . (July 3, 2019), https://cdt.org/insights/the-thorny-problem- The Electronic Frontier Foundation explains that The Electronic Frontier Foundation supra Gradual Erosion, ECH 194 The idea that government officials—especially government idea that The - politi Coaston, & T Buckley v. Valeo, 424 U.S. 1, 48–49 (1976) (“[T]he concept that govern- Buckley v. Valeo, 424 U.S. 1, 48–49that concept (“[T]he (1976) 190 Kosseff, Brenda Dvoskin, The Thorny Problem of Content Moderation and Bias See See Harmon, Senator Hawley’s Proposal, Lastly, requiring politically neutral content moderation politically neutral content Lastly, requiring Faced with the risk of running afoul of an ambiguous polit- Faced with the risk of running M K EMOCRACY 193 194 190 191 192 cal appointees like FTC commissioners—have like appointees cal on final say the foreign to concept “wholly bias” is a “political what constitutes Amendment.” the First for ‘political neutrality’” because it is a subjective determination and noting that to analyze algorithms and “determine what FTC commissioners would be “unable” could be considered ‘politically neutral’”—asking, for example, whether or not the in 2016 is a “politically neutral” statement). fact that Trump lost the popular vote political bias is not measurable because (1) “the term ‘political viewpoint’ is political bias is not measurable because between ‘political viewpoints’ and broad,” and it is “impossible to distinguish is a other viewpoints,” and (2) the “disproportionate standard” assumes there neutral baseline to which content moderation practices could be compared); Miers, ment may restrict the speech of some elements of our society in order to enhance ment may restrict the speech of some to the First Amendment . . . .”). the relative voice of others is wholly foreign is inherently impossible,” and “[t]here is no such thing as truly neutral content moderation”). D \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown Seq: 41 15-FEB-21 11:00 2021] 2021] make. kmont to dilemma of the Stratton Oa would return us were encouraged computer service providers which interactive con- hands-off approach to user-generated to “take an entirely moderate content even the slightest effort to tent” for fear that of liability. up to enormous amounts would open them bill’s political neutrality requirement poses significant practical poses significant requirement neutrality bill’s political stan- enforce an objective “impossible to since it is difficulties, social media.” ‘neutrality’ on dard of - of-content-moderation-and-bias/ [https://perma.cc/VUV4-RG3G] (“This propo - sal could create a huge disincentive to moderate, which could lead to a prolifera . . . tion of misinformation and diminished usefulness of many online services. understanding this key reason why politically neutral content this key reason why politically understanding it is helpful to such a detrimental policy choice, moderation is Senator Hawley’s. life under a regime like imagine digital a repeat of the disinforma- Would Facebook be able to prevent election?tion crisis surrounding the 2016 Would tech compa- to combat misinformation nies have been able to work together about the coronavirus? therefore of losing their Sec- ical neutrality requirement, and would be disincentivized from tion 230 immunity, companies socially beneficial content moder- engaging in these voluntary, refrain from moderating con- ation decisions and would likely tent at all. C Y 42993-crn_106-2 Sheet No. 100 Side A No. 100 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 100 Side B 03/12/2021 06:20:48 R R R R R R R M K C Y 197 As 199 . 277, 279 EV [Vol. 106:457 106:457 [Vol. . & C.R. L. R OL . P EMP note 51, at 38 (highlighting the im- , 24 T As Eric Goldman has argued, Goldman has As Eric supra 195 230, the Internet as we know it would cease to 230, the Internet as we know it would ONCLUSION C note 49, at 38 (“Twitter transmits approximately 200 CORNELL CORNELL LAW REVIEW would render it nearly impossible for com- would render Free Speech Under note 167; see also Noah Tischler, Note, note 119, at 121–22 (“The sites could not review the mil- 198 Gradual Erosion, supra supra , supra supra note 119, at 140. at 139 (quoting Godwin). , , 200 196 supra note 49 (stating that “Facebook alone has more than 1 billion Id. Kosseff, OSSEFF OSSEFF EFF, See K McKinney & Harmon, supra note 186. Goldman, K In the absence of Section 230 immunity, each and every of Section 230 immunity, each In the absence 198 199 200 195 196 197 would simply choose to curb potentially controversial discus- controversial to curb potentially choose would simply practicality of “expect[ing] Twitter—and“expect[ing] of media providers—to other social practicality assume liability for their users’ posts”); id. at 3 (“Imagine if Facebook and Twitter were - responsible for every user comment, or if Yelp was responsible for every restau rant review.”). users, and YouTube users upload 100 hours of video every minute”); Kosseff, users, and YouTube users upload 100 hours of video every minute”); Kosseff, Gradual Erosion billion tweets annually.”). Siege: Why the Vitality of Modern Free Speech Hinges on the Survival of Section Siege: Why the Vitality of Modern Free 230 of the Communications Decency Act The sheer volume of user-generated content that floods plat- of user-generated content The sheer volume forms every day for communities to shape their own Mandated neutrality would make it harder house rules.”). \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown Seq: 42 498 15-FEB-21 11:00 “[f]aced with the impossible task of proving perfect neutrality, neutrality, perfect of proving task the impossible with “[f]aced platforms—especiallymany of the resources without those litigation— against defend themselves or Google to Facebook host online communities refuse to and even sion altogether to minority views.” devoted panies to adequately screen for potential liability. panies to adequately screen (2014) (“Without the protection of § would perish.”). exist and this metropolis of free expression user post, tweet, and comment would present “another small and comment would present user post, tweet, of existence.” [a] website could be sued out but real risk that lions of words, pictures, and videos that were uploaded.lions of words, pictures, and videos that screen And if they did not they could be liable for existential every bit of third-party content in advance, amounts of damages. by [Without Section 230 and its current interpretation their current form.”).courts], the websites could not exist in immu- Section 230 companies; other internet companies that nity does not just benefit social media content face the same problem.host vast amounts of user-generated God- Mike Wikimedia Foundation, explained that win, the former general counsel of the sites like Wikipedia could not exist be- without the protections of Section 230, today’s robust online public squares cause “these laws are essential to making for the next generation of online entre- possible, and they will likely be essential preneurs.” “[i]n light of how much bad content is online despite the In- is online despite bad content of how much “[i]n light should terrify current best efforts, that prospect ternet services’ everyone.” Representative Chris Cox, one of the drafters of Section 230, Representative Chris Cox, one to have Section 230 to have a remarked, “You absolutely need Facebook.” 42993-crn_106-2 Sheet No. 100 Side B No. 100 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48 42993-crn_106-2 Sheet No. 101 Side A 03/12/2021 06:20:48 R 499 499 COMPELLING CODE CODE COMPELLING note 9. supra Senator Wyden continued, “If you unravel 230, then continued, “If you unravel 230, Senator Wyden 202 201 Stewart, Id. With calls for regulating big tech in vogue, it is imperative, imperative, it is in vogue, tech big regulating calls for With Senator Hawley’s Ending Support for Internet Censorship Senator Hawley’s Ending Support M K 201 202 you harm the opportunity for diverse voices, diverse platforms, for diverse voices, you harm the opportunity to have a chance to get off the and, particularly, the little guy ground.” \\jciprod01\productn\C\CRN\106-2\CRN204.txt unknown Seq: 43 15-FEB-21 11:00 2021] 2021] 230 of Section the importance to reiterate ever, more than now develop - to support the to continue its ability and champion the Internet.ment of 230 has Section Since its enactment, providers—first service interactive computer allowed America and Google—to and now Facebook Online, - their plat police objectionable content. and remove forms for - Importantly, Sec giants who so often not only the social media tion 230 protects but also at the center of the conversation, find themselves who rely on organizations, and small bloggers Wikipedia, news content and comments.or allow user-generated Senator for the big guy. “My brief has never been Wyden has explained, been about inno- about the startup, it’s always It’s always been and competition.vation, the inventor, my concern That is still today.” Act is an unconstitutional attempt to revoke big tech compa- Act is an unconstitutional attempt nies’ Section 230 immunity. a requirement The bill imposes content moderation prac- that big tech companies maintain of all political bias, thus forcing tices and algorithms devoid their algorithms in order to noncompliant companies to rewrite immunity.earn (and keep) Section 230 regulation, as a The because it fails to form of compelled speech, is unconstitutional of strict scrutiny.satisfy the demanding standard Further, the assumption of anticonserva- bill is based on the unsupported is plagued by both practical diffi- tive bias on social media and culties and unwise policy. meaningful and For Section 230, long-lasting change may be coming—but a sound proposal for such change remains to be seen. C Y 42993-crn_106-2 Sheet No. 101 Side A No. 101 Side Sheet 42993-crn_106-2 03/12/2021 06:20:48