March 7, 2021

Dear Section 230 Critics: When Senators Hawley And Cruz Are Your Biggest Allies, It’s Time To Rethink

By Cathy Gellis
Last week Senators Hawley and Cruz used their platform and power as United States Senators to deliberately spread disinformation they knew or should have known to be false in order to undermine public confidence in the 2020 Presidential Election results. Their actions gave oxygen to a lawless and violent insurrection that nearly overran—literally and physically—our democratic government.

They should have known better and there is every reason to believe they did know better. There is every reason to believe that they intended their actions to further their craven attempt to solidify their own desired political power, even though it came at the expense of our Constitutional order and democratic norms and likely *because* it came at the expense of our Constitutional order and democratic norms, which would otherwise have stood against their ambition. They are, after all, highly educated people, bearing credentials from some of our most esteemed academic institutions. It is impossible to believe they did not know what they were doing.

Just as it is impossible to believe they did not know what they were doing when they railed against Section 230. At first glance it may seem like an irrelevant quibble to take issue with their position on Internet policy when viewed in comparison to the actual, violent insurrection they also invited. But it is indeed worth the attention, for the same reasons that their other anti-democratic behavior is so troubling. Because one of the reasons we have rights of free expression in America, and the Constitution to guarantee them, is because free expression is so necessary as a check against tyranny. And for those like Hawley and Cruz who are rooting for the tyranny, getting rid of those speech protections is a necessary first step to advancing that anti-democratic end.

Which is what gutting Section 230 would do. While the First Amendment would, of course, in theory still be there to protect speech, in practice those rights would become illusory. When it comes to online expression, Section 230 is what makes those speech rights the First Amendment protects real and meaningful. And that’s exactly what Hawley and Cruz want to prevent.

They want to prevent it because they can see how Section 230 stands in their way. They can see how platforms exercising their First Amendment rights to choose which user speech to facilitate could lead to those platforms choosing not to facilitate their poisonous propaganda, and they understand how stripping platforms of their Section 230 immunity effectively takes away platforms’ ability to make that choice by making it too legally precarious to try.

They also can see how stripping platforms of their statutory immunity could force platforms to suppress user speech that challenges them. Section 230 allows platforms to have a free hand in enabling user speech because it means they don’t have to fear enduring an expensive legal challenge over it. Without the statute’s currently unequivocal protection, however, they won’t be able to accommodate it so willingly. They will be forced to say no to plenty, including plenty of socially valuable, Constitutionally-protected speech against government officials like Hawley and Cruz, lest these platforms make themselves vulnerable to expensive litigation over it—which, even if unmeritorious, would do nothing but drain their resources. Every change to Section 230 that Hawley and Cruz have demanded would erode this critical protection platforms depend on to enable all this user expression and lead them to second guess whether they could continue to. And it would thus leave Hawley, Cruz, and their corrupt compatriots free to continue their nefarious efforts to consolidate their control over the nation without much fear of complaint.

The problem is, though, so would all the changes to Section 230 also being championed by Democrats. Campaigning against Section 230 has not been the exclusive domain of Republicans. Plenty of Democrats have joined them, from Senator Blumenthal (D-CT), to Rep. Eshoo (D-CA) and Rep. Malinowski (D-NJ), to even Senator Schatz (D-HI). And, of course, perhaps the most prominent Democrat of them all: President-Elect Joe Biden. Their reasons for agitating against Section 230 may be different than those cited by Republicans, and their proposed changes may vary in specifics as well, but, whether they realize it or not, the effect of all these changes would be the same as what Hawley and Cruz have advocated for: the erosion of First Amendment protections online. Which will only grease the skids for the Hawleys and Cruzes of the world as much as all the changes they themselves have been calling for.

Every policymaker appalled by what has just transpired and eager to preserve our system of self-government must take heed. Our inherently fragile democracy cannot survive without free speech, and no policymaker who wishes to ensure its survival can afford to do anything to undermine it. But when it turns out, as it does now, that the policy demanded by democracy’s saviors is the same exact policy sought by its enemies, those who wish to save it need to think again about what they really ought to be asking for.