July 16, 2019 The Honorable Ted Cruz Chairman Subcommittee on the Constitution Committee on the Judiciary U.S. Senate 404 Russell Senate Office Building Washington, D.C. 20510 The Honorable Mazie Hirono Ranking Member Subcommittee on the Constitution Committee on the Judiciary U.S. Senate 713 Hart Senate Office Building Washington D.C. 20510 RE: Google and Censorship through Search Engines Chairman Cruz, Ranking Member Hirono, Members of Senate Judiciary Subcommittee on Constitution: The 2016 Republican Party Platform declared, after calling for repeal of existing regulation of political speech and campaign finance, “[w]e likewise call for an end to the so-called Fairness Doctrine, and support free-market approaches to free speech unregulated by government.”1 Yet now it is Republicans, led by Senator Cruz and Senator Hawley, who are calling for sweeping regulation of online speech — and what amounts to a Fairness Doctrine for the Internet. Truly, the world has turned upside down. We write to remind these Senators in particular, and the entire committee, of core principles that should transcend partisan affiliations — and to urge you, Mr. Chairman and Senator Hawley, to desist from stoking this manufactured controversy for partisan advantage. 1) The First Amendment In No Way Justifies Government Intervention Here Senators Cruz, Hawley and other Republicans have consistently framed “censorship” by Internet companies as an attack on free speech, and claimed that social media companies and search engines 1 Republican Platform 2016, at 12, (2016), available at https://prod-cdn- static.gop.com/media/documents/DRAFT_12_FINAL%5B1%5D-ben_1468872234.pdf. should operate as “public fora.”2 As we explained in our submission to this subcommittee’s hearing in April, these claims have no basis in First Amendment law. These services simply are not public fora. If there were ever any doubt about this, it was removed by the Supreme Court’s decision in Manhattan Community Access Corp. v. Halleck.3 To frame this issue as a matter of free speech, or otherwise invoke the First Amendment, ignores both the plain language of the First Amendment ("Congress shall make no law…") and the Supreme Court's clear jurisprudence about when the First Amendment applies. Such conflation is beneath the dignity of the Senate Judiciary Committee, which should lead by example in always drawing the clearest possible distinctions regarding the application of constitutional principles. 2) In Fact, the First Amendment Prohibits Government Intervention Here The First Amendment is not a sword to be wielded by politicians to produce outcomes they prefer, but a shield against meddling by the government in media — a point that used to be a Republican mantra. It is no more appropriate for Republicans to hold hearings into alleged platform “bias” than it would be for Democrats to hold hearings on the political bias of Fox News, Sinclair Broadcasting, talk radio, Breitbart, or any other media they might dislike. Such hearings are themselves offensive to the First Amendment because they are a form of political pressure exerted upon media companies for the purpose of changing how they exercise their editorial discretion. I attempted to make this point as a witness before the House Judiciary Committee hearing on “filtering practices of social media platforms” in April 2018.4 In the course of doing so, Rep. Darrell Issa (R-CA) interrupted, saying that when airplanes crash, Congress holds oversight hearings — and this was no different. But it is different: Congress can hold oversight hearings on airplane safety because it has every right to regulate airplane safety. Congress should not hold oversight hearings or otherwise exert its investigatory powers (on pain of subpoena) in the context of speech because the First Amendment bars Congress from regulating how private companies exercise their editorial discretion. As Rep. Ted Lieu asked of me during that hearing: 2 Facebook, Social Media Privacy, and the Use and Abuse of Data: J. Hearing of S. Comm. on the Judiciary and S. Comm. on Commerce, Science, and Transp., 115th Cong. (2018) (statement of Sen. Ted Cruz, member, S. Comm. on Commerce, Science, and Transp.), available at http://www.cruz.senate.gov/?p=video&id=3715. 3 Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1930 (2019) (“Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed. Therefore, a private entity who provides a forum for speech is not transformed by that fact alone into a state actor. After all, private property owners and private lessees often open their property for speech. Grocery stores put up community bulletin boards. Comedy clubs host open mic nights.”). 4 Filtering Practices of Social Media Platforms Before the H. Comm. on The Judiciary, 115th Cong. (2018) (statement of Berin Szoka, TechFreedom)[hereinafter “Szoka Testimony”], available at https://docs.house. gov/meetings/JU/JU00/20180426/108231/HHRG-115-JU00-Wstate-SzokaB-20180426.pdf. Rep. LIEU. ...there is a more fundamental problem. The First Amendment applies to the government. Can we just get that clear? It does not apply to the strict content of private companies. So let us just go through something very simple. And I will ask you, Mr. Szoka. We do not tell Fox News what to filter. Right? Mr. SZOKA. Correct. Mr. LIEU. And we cannot tell Facebook what content to filter; the government cannot. Right? Mr. SZOKA. Correct. Mr. LIEU. That would just be flat out unconstitutional. Right? Mr. SZOKA. Yes, sir.5 3) What Republicans Are Asking for is a Fairness Doctrine for the Internet Attached as Exhibit A is my testimony before the House Judiciary Committee.6 At its core, any attempt by the government (this administration or a future administration controlled by a different party) to mandate “neutrality” on social media platforms and search engines would impose a Fairness Doctrine for the Internet, a concept antithetical to Republican principles for over 70 years. The robust broadcast media that has emerged since the repeal of the broadcast Fairness Doctrine demonstrates just how chilling such “neutrality” fiats were, and how the marketplace for ideas is the only solution to perceived bias. In vetoing an attempt by Congress to reinstate the broadcast Fairness Doctrine in 1987, President Reagan’s said the following: [W]e must not ignore the obvious intent of the First Amendment, which is to promote vigorous public debate and a diversity of viewpoints in the public forum as a whole, not in any particular medium, let alone in any particular journalistic outlet. History has shown that the dangers of an overly timid or biased press cannot be averted through bureaucratic regulation, but only through the freedom and competition that the First Amendment sought to guarantee.7 His warning should not be ignored today — least of all by the very Republicans who claim President Reagan’s mantle. 4) Section 230 Is Working Exactly as It Should Far from being a Democratic sop to big tech, Section 230 was drafted by a Republican Congressman, Rep. Chris Cox (R-CA) to ensure that tech companies would not be hounded by lawyers seeking to hold them liable for user content. Attached as Exhibit B is a statement of principles we recently drafted in collaboration with leading Section 230 experts, signed by 28 organizations and 53 5 Filtering Practices of Social Media Platforms Before the H. Comm. on The Judiciary, 115th Cong. (2018) at 43, available at https://www.govinfo.gov/content/pkg/CHRG-115hhrg32930/pdf/CHRG-115hhrg32930.pdf. 6 Szoka Testimony supra note 4. 7 Veto of Fairness in Broadcasting Act of 1987, 133 Cong. Rec. 16989 (June 23, 1987), available at http://www.presidency.ucsb.edu/ws/?pid=34456. academics from across the political spectrum.8 We quote here from two principles that are particularly relevant to this issue: Principle #3: The law shouldn’t discourage Internet services from moderating content. To flourish, the Internet requires that site managers have the ability to remove legal but objectionable content — including content that would be protected under the First Amendment from censorship by the government. If Internet services could not prohibit harassment, pornography, racial slurs, and other lawful but offensive or damaging material, they couldn’t facilitate civil discourse. Even when Internet services have the ability to moderate content, their moderation efforts will always be imperfect given the vast scale of even relatively small sites and the speed with which content is posted. Section 230 ensures that Internet services can carry out this socially beneficial but error-prone work without exposing themselves to increased liability; penalizing them for imperfect content moderation or second-guessing their decision-making will only discourage them from trying in the first place. This vital principle should remain intact. Principle #4: Section 230 does not, and should not, require “neutrality.” Publishing third-party content online never can be “neutral.” Indeed, every publication decision will necessarily prioritize some content at the expense of other content. Even an “objective” approach, such as presenting content in reverse chronological order, isn’t neutral because it prioritizes recency over other values. By protecting the prioritization, deprioritization, and removal of content, Section 230 provides Internet services with the legal certainty they need to do the socially beneficial work of minimizing harmful content. 5) Antitrust