Conservatives seize on New York Post story to push Section 230 reform

Conservatives have seized on Facebook and Twitter’s handling of this week’s controversial New York Post story on Hunter Biden to attack tech’s legal liability shield.

The decisions by both companies to limit the spread of the dubious article — by Twitter for breaking a policy on hacked materials, by Facebook as precaution — was used as evidence for Republican’s allegations of anti-conservative bias in social media.

President Trump in particular has used the episode to reenergize the crusade he’s led against Section 230 of the Communications Decency Act since signing an executive order targeting it in May.

“Now, Big Tech — you see what’s going on with Big Tech? — is censoring these stories to try and get Biden out of this impossible jam. He’s in a big jam,” Trump said at a rally Thursday.

The New York Post article alleged that Hunter Biden, Democratic presidential nominee Joe Biden’s son, had organized a meeting between a Ukrainian businessman and his father, who was vice president at the time. That claim was based on emails obtained from a hard drive with no substantive links to anyone involved.

The Biden campaign has denied any such meeting and pointed to numerous investigations that have all concluded there was “no wrongdoing” by the former vice president regarding Ukraine. Facebook and Twitter both moved to clamp down on the story — the former based on its hacked materials policy and because of sensitive information not redacted from the emails in the story, the latter because of unknown “signals.”

Section 230 gives online platform legal liability for content posted by third parties while allowing them to do good faith content moderation. While there have been bipartisan efforts to amend or revoke the 1996 law, the recent broadside by Trump and Republicans show how the issue has become increasingly partisan.

Multiple conservatives spoke out about 230 for the first time this week.

House Minority Leader Kevin McCarthy (R-Calif.) seemed to call for a full on repeal of the statute for the first time on Thursday.

“It’s clear Section 230 in its current form is no longer working,” he said during a press conference. “It is time to scrap the law and start over.”

Rep. Cathy McMorris Rodgers (R-Wash.), the top Republican on the House Energy and Commerce panel on consumer protection, joined her committee colleagues in calling for reform after warning just a year ago about the free speech implications of weakening Section 230.

“These top platforms must be held accountable for the content bias and how they’re influencing the election,” she said during an event hosted by Politico Thursday.

Those new voices are in addition to the Republicans who have already been beating the anti-Big Tech drum for years.

Sen. Josh Hawley (R-Mo.), who is now writing a book on supposed anti-conservative bias in Big Tech, called for Facebook’s Mark Zuckerberg and Twitter’s Jack Dorsey to testify, alleging that their content moderation decisions amounted to in-kind campaign contributions to former Vice President Joe Biden.

Sen. Ted Cruz (R-Texas) accused the platforms of election interference.

“This is election interference, and we are 19 days out from an election,” he told reporters yesterday. “Never before have we seen active censorship of a major press publication with serious allegations of corruption of one of the two candidates for president.”

And even though both Zuckerberg and Dorsey are already set to testify before the Senate Commerce Committee later this month, the Republican leadership of the Judiciary Committee promised to subpoena them next week over the New York Post saga.

The subpoena would have the CEOs appear as early as next week.

Just as Republicans are escalating their challenges to Section 230, the Federal Communications Commission is picking up Trump’s challenge to the rule.

Chairman Ajit Pai announced Thursday that the agency is moving forward with “a rulemaking to clarify” to the law considered foundational to the modern internet.

The FCC’s grounds to amend the law are shaky at best given that it is a law written by Congress.

“Congress never granted the FCC the power to interpret Section 230,” Carl Szabo, vice president and general counsel at NetChoice, said Thursday. “The history and text of the law both confirm that the FCC lacks the authority to regulate the online speech through Section 230.”

The Democrats on the committee, Commissioners Geoffrey Starks and Jessica Rosenworcel, have slammed Pai’s decision to consider the administration’s proposal.

Pai and fellow Republican Commissioner Brendan Carr are both in favor.

That leaves Republican Michael O’Reilly, who had his nomination to serve a second term pulled by the White House shortly after signaling opposition to Section 230 reform, as the swing vote.

Soon though it could be Nathan Simington, the Trump pick to replace O’Rielly that has a nomination hearing scheduled shortly after the election.

Simington played a major role in drafting the petition from the National Telecommunications and Information Administration (NTIA) that the FCC is now considering while he was at the Department of Commerce subagency, suggesting he will support rulemaking on Section 230.

It is unclear how committed Republicans actually are to scrapping the law entirely. Revoking Section 230 could ultimately result in more censorship as platforms would have to make sure posts are legally sound before letting them be published.

“If [Trump] got his way, websites would become legally responsible for the opinions, videos, and memes posted by their users,” Evan Greer, deputy director at internet rights group Fight for The Future, said in a statement Thursday. “Social media platforms would likely engage in mass censorship and banning of accounts rather than open themselves up to lawsuits for hosting controversial opinions –– Trump’s accounts would surely be among the first to go.”

However, constantly threatening to axe an important legal liability whenever platforms take action against conservative content does send a clear signal to tech companies about how Republicans would like them to operate.