Attacks on Section 230 reveal much more dangerous tech-policy strategy

Let’s say the quiet part out loud for once: Republican lawmakers don’t really care about Section 230 of the Communications Decency Act (CDA). They also don’t believe social media platforms are intentionally limiting conservative voices. It’s all a ruse. A game. But the game is not without a point.

Lawmakers such as Sens. Josh Hawley (R-Mo.), Lindsey Graham (R-S.C.) and Ted Cruz (R-Texas) aren’t making genuine policy arguments when they malign Section 230, which protects online forum providers from legal liability for how people use their platforms. They also know content moderation is not a First Amendment issue, despite what they say. President Trump last week threatened to veto the National Defense Authorization Act (NDAA) if it did not include a Section 230 repeal. None of these efforts are out of concern for policy change or democracy. They are instead using the quickly evolving misinformation playbook to inflame their bases. It’s working.

It’s as if we’re all playing a game of darts, and we laugh and laugh at the lawmakers whose distorted and embarrassingly bad Section 230 and First Amendment takes wildly miss the dart board. What we don’t realize is they aren’t playing darts. They aren’t trying to hit the dart board. While we correct their takes and scoff at their ignorance, they are playing a different game. Their goal is not to get Section 230 or the First Amendment right. It’s to exert pressure on Big Tech firms to create benefits for them.

These lawmakers don’t want to win using traditional democratic structures — they know they can’t. They know that forcing social media firms to leave certain content up and take other content down will never succeed in the courts. They know that removing Section 230 would not even fix this problem in the first place. 

This doesn’t stop them from mischaracterizing laws and the First Amendment because misinforming the public has become a powerful tool. They don’t need to pass a bill; they need to convince their bases they are being persecuted. They need an enemy, and social media firms make pretty good ones. So what if the First Amendment and a law that has helped protect the development of the Internet are casualties?

These lawmakers know, in a fragmented, polarized networked environment, they don’t have to be accurate. People don’t vote based on facts in the 21st century; they vote based on tribes. Using misleading takes that are nearly instantly snapped up in short video clips and shared throughout like-minded and sympathetic online communities, they can shock their bases and create a problem where none existed before. 

It’s working. I’m seeing more and more people claim social media firms are censoring ideas and violating First Amendment rights. To be clear, that’s not possible. The First Amendment does not apply to private entities’ content decisions; it only applies to government efforts to limit expression. I’m also seeing more people claim Section 230 is protecting Facebook’s and Twitter’s decisions to limit conservative voices — also not true. These firms would have the same protections under the First Amendment without Section 230.

It’s time we realize that these lawmakers are not playing darts. It’s time we stop correcting them, as if they are merely misguided. They are misleading us. It’s time we point their dangerous game out. 

There’s a reason why, as tech policy researcher Jess Miers has carefully tracked, lawmakers have proposed about dozen Section 230-related bills in the past several months and none of them have gone anywhere. The intent is not to pass these bills, the intent is to make it look like they are fighting against the enemies they have created.

By doing so, they create animosity between tech giants, and create an “us-against-them” solidarity within their political bases. All of this is generally done, sans any awareness of irony at all, using the same platforms they malign.

The prophecy, however, becomes self-fulfilling, as every content decision tech giants make becomes a controversy and another example of the problem they baked. This mob-based political capital can then be used to pressure the tech firms to make more conservative-friendly moderation policies. Politicians can hold hearings and conjure poll numbers and examples in front of the tech CEOs and demand change. It’s a mix of theater and legislating via the mob, rather than the systems outlined in the Constitution.

None of this is to say tech giants are blameless, or that careful work on how we understand social-media policies should not be done. Social media firms’ products are damaging democracy, and these corporations are well aware of this. They lack the incentive to improve their products so they do not harm our democracy. 

The damage social media firms’ products are causing, however, relate more with the flow of misinformation and disinformation in our democratic discourse. In other words, the very tools these lawmakers are counting on when they mischaracterize the laws and the First Amendment.

Their reindeer games distract us from the real work that must be done. We should welcome constructive work to improve social media systems. At the same time, we must reject disingenuous efforts to mislead people about the meaning of the First Amendment, a foundation to our society and Section 230.

Jared Schroeder is an associate professor of journalism at Southern Methodist University, where he specializes in First Amendment law. He is the author of “The Press Clause and Digital Technology’s Fourth Wave.”