Testimony of TechFreedom Berin Szóka1 Platform Responsibility Section 230 Filtering Practices of Social Media Platforms Hearing Before the House Committee on the Judiciary Thursday April 26 2018 10 00 a m Rayburn House Office Building Room 2141 Berin Szóka is President of TechFreedom a nonprofit nonpartisan technology policy think tank He can be reached at bszoka@techfreedom org Ashkhen Kazaryan a Legal and Research Fellow at TechFreedom assisted with the preparation of this testimony She can be reached at akazaryan@techfreedom org 1 Table of Contents I Introduction 2 II Law What Congress Intended in Section 230 4 Mis-Reading the Text Legislative History of Section 230 4 What Section 230 Immunity Actually Depends On 6 1 Section 230 Does Not Protect Websites Responsible for the “Development” of Content 6 2 Political Bias Alone Will Not Cause a Website to Lose Its Section 230 c 2 A Immunity for “Good Faith” Content Moderation 8 III Policy What Should Platforms Be Responsible For 10 A Brief History of the Fairness Doctrine 10 1 How the Fairness Doctrine Was Repealed 12 2 How the Fairness Doctrine Backfired — And Why It Was Repealed 13 The Practical Effect of Amending Section 230 14 1 The Fairness Doctrine Is Inherently Arbitrary as Companies Will Never Know What Is “Controversial” Until After the Fact 15 2 Any Fairness Doctrine Will Be Subject to Political Manipulation 16 3 Small Companies and Startups Will Be Disadvantaged and Incumbents Like Facebook Will Be Protected from Competition 16 IV Constitutional Considerations 17 The First Amendment Bars Imposing the Fairness Doctrine on the Internet 17 Social Media Companies Are Not State Actors 19 Government May Not Require Speakers to Give Up Their First Amendment Rights in Exchange for a Benefit Including Section 230 Immunity 21 V Congress Botched the Recent Amendment of Section 230 SESTA FOSTA 23 VI A Word about “Net Neutrality” in Relation to “Platform Neutrality” 24 VII A Positive Agenda Areas for Thoughtful Discussion 27 VIII Conclusion 28 1 I Introduction If one law has made today’s Internet possible it is Section 230 of the Communications Decency Act of 1996 “Section 230” 2 Drafted by Rep Chris Cox R-CA and Sen Ron Wyden D-OR that law ensured that websites would not be held liable for content created by their users except in very limited circumstances Without that law social media sites that allow users to post content of their own creation would never have gotten off the ground given the impossibility of monitoring user content at the scale at which such sites operate today Yet in a recent hearing featuring Facebook CEO Mark Zuckerberg Sen Ted Cruz R-TX argued that Congress intended Section 230 to apply only to “neutral public platforms ” asking Zuckerberg It’s just a simple question The predicate for Section 230 immunity under the CDA is that you’re a neutral public forum Do you consider yourself a neutral public forum or are you engaged in political speech which is your right under the First Amendment ”3 Cruz also asked “Are you a First Amendment speaker expressing your views or are you a neutral public forum allowing everyone to speak ” 4 Sen Lindsay Graham R-SC took up the same message after the hearing “ Website operators enjoy liability protections because they’re neutral platforms At the end of the day we’ve got to prove to the American people that these platforms are neutral ” 5 Politico reports that Sen Graham has previously proposed a task force made up of members of the Senate Commerce and Judiciary committees to investigate this issue and make concrete proposals 6 These Senators are dead wrong about how Section 230 works and more important about the wisdom of requiring such neutrality The idea that government should police the “neutrality” of websites is in effect a Fairness Doctrine for the Internet It is ironic that such a proposal should come from any Republican especially one so proudly “conservative” as 2 47 U S C § 230 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 4 Id Li Zhou Morning Tech Stephenson Goes after DOJ Arguments POLITICO Apr 20 2018 https www politico com newsletters morning-tech 2018 04 20 stephenson-goes-after-doj-arguments178514 5 Elena Schor Graham seeks 9 11-style commission on social media vulnerabilities POLITICO Nov 2 2017 https www politico com story 2017 11 02 social-media-commission-lindsey-graham-244466 6 2 Cruz given the intensity of opposition by Republicans to the Fairness Doctrine for generations for stifling conservative voices on radio and television Indeed it was President Reagan whose FCC finally abolished the Fairness Doctrine and Reagan himself who vetoed Democratic legislation to revive the doctrine Opposition to reinstatement of the Fairness Doctrine has been in every GOP platform since 2008 7 In 2012 the GOP platform added this “We insist that there should be no regulation of political speech on the Internet ”8 In 2016 five years after the FCC under a chairman appointed by President Obama took the last step in repealing the Fairness Doctrine formally deleting the rule that had gone unenforced since 1987 the GOP Platform still strangely called “for an end to the so-called Fairness Doctrine ” and expressed “support for freemarket approaches to free speech unregulated by government ” 9 In 2009 thirty-one Republican senators co-sponsored Sen Jim DeMint’s R-SC “Broadcaster Fairness Act of 2009 ” a one paragraph bill that would have barred the FCC from resurrecting the Fairness Doctrine 10 Among these co-sponsors was Sen Lindsay Graham R-SC — and it is difficult to imagine that Sen Cruz would not have joined him had he been in the Senate at the time Why conservatives would suddenly embrace the Fairness Doctrine after decades of opposing it is simply baffling Conservative talk radio was impossible before the Reagan FCC repealed the Fairness Doctrine for example The Fairness Doctrine suppressed heterodox viewpoints and enforced a bland orthodoxy in media It would do the same for the Internet Concerns about Facebook’s potential slant are best addressed through other measures starting with transparency and user empowerment Ultimately the best check on Facebook’s power today is the threat of a new Facebook disrupting the company’s dominance — just as many younger Internet users abandoned the site first for Instagram and then for Snapchat Regulators should avoid creating vague legal liability not least because while it might be manageable for a company as large and well-resourced as Facebook which has Platform of the Republican Party 2008 available at http www presidency ucsb edu ws index php pid 78545 We support freedom of speech and freedom of the press and oppose attempts to violate or weaken those rights such as reinstatement of the so-called Fairness Doctrine 2012 GOP Platform we oppose governmental censorship of speech through the so-called Fairness Doctrine or by government enforcement of speech codes free speech zones or other forms of political correctness on campus 7 Les Brown Reported Political Use of Radio Fairness Doctrine Under Kennedy and Johnson Is Causing Concern N Y TIMES Mar 31 1975 at 50 https www nytimes com 1975 03 31 archives reported-political-use-ofradio-fairness-doctrine-under-kennedy-and html 8 Platform of the Republican Party 12 2016 available at https prod-cdnstatic gop com media documents DRAFT_12_FINAL 1 -ben_1468872234 pdf 9 Broadcaster Freedom Act of 2009 S 34 111th Cong 2009 https www congress gov bill 111thcongress senate-bill 34 cosponsors 10 3 thousands of employees working just in content moderation 11 it will be fatal to the startups seeking to become the next Facebook 12 Finally imposing the Fairness Doctrine on the Internet would be grossly unconstitutional whether enforced through statutory mandate or as a condition of eligibility for immunity under a revised version of Section 230 The original Fairness Doctrine survived First Amendment review solely because the Supreme Court singled out broadcast media for diminished First Amendment protection But the Court has repeatedly declared that the Internet including social media deserve the full protection of the First Amendment II Law What Congress Intended in Section 230 Sens Cruz and Graham’s interpretation of Section 230 is diametrically opposed to the purpose of the law which was to encourage websites to take down content as they see fit Mis-Reading the Text Legislative History of Section 230 Understanding Section 230 begins with the letter of the law As the late Justice Scalia once admonished “ f or some policy-driven interpretation is apparently just fine But for everyone else let us return to Statutory Interpretation 101 We must begin as we always do with the text 13 To start Section 230 b 2 declares that “It is the policy of the United States … to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services unfettered by Federal or State regulation ”14 Given this language it is impossible to read Section 230 as a mandate for regulation yet that is precisely what those calling for requiring Facebook or any other social media platform to be a “neutral public forum” are doing Moreover the operative provisions of Section 230 make clear that Congress intended to encourage website operators to exercise editorial discretion — the opposite of neutrality See Hayley Tsukayama Facebook adds 3 000 employees to screen for violence as it nears 2 billion users WASHINGTON POST May 3 2017 https www washingtonpost com news the-switch wp 2017 05 03 facebook11 is-adding-3000-workers-to-look-for-violence-on-facebook-live utm_term 8d729c427ada Anita Balakrishnan Facebook pledges to double its 10 000-person safety and security staff by end of 2018 CNBC Oct 31 2017 https www cnbc com 2017 10 31 facebook-senate-testimony-doubling-security-group-to-20000in-2018 html citing Congressional testimony by Facebook VP and General Counsel Colin Stretch See D Wakabayashi A Satariano How Looming Privacy Regulations May Strengthen Facebook and Google NEW YORK TIMES April 28 2018 https www nytimes com 2018 04 23 technology privacy-regulationfacebook-google html 12 Zuni Public School Dist No 89 v Department of Educ 550 U S 81 109 2007 Scalia J dissenting internal citation omitted 13 14 47 U S C § 230 b 2 4 Section 230 c 2 confers two kinds of “Protection for ‘Good Samaritan’ blocking and screening of offensive material” No provider or user of an interactive computer service shall be held liable on account of— A any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene lewd lascivious filthy excessively violent harassing or otherwise objectionable whether or not such material is constitutionally protected B any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph 1 15 Far from being “neutral ” Congress intended website operators to have extremely broad discretion in deciding what material to take down Nothing could be more inconsistent with this notion than the idea that the government should — as it did with the Fairness Doctrine — second-guess the decisions that website operators make about what speech is “obscene lewd lascivious filthy excessively violent harassing or otherwise objectionable ”16 The author of Section 230 Rep Chris Cox R-CA was “inspired” to draft and introduce the legislation by Stratton Oakmont Inc v Prodigy Services Co a 1995 trial court decision holding that website operators who assumed an editorial role with regard to customer content became “publishers” and thus could be held liable for defamatory material posted by their users 17 The House Report on Section 230 makes the statute’s purpose clear S ection 230 provides ‘Good Samaritan’ protections from civil liability for providers of an interactive computer service for actions to restrict access to objectionable online material One of the specific purposes of this section is to overrule Stratton–Oakmont sic v Prodigy and any other similar decisions which have treated such providers as publishers or speakers of content that is not their own because they have restricted access to objectionable material 18 The Ninth Circuit said this about the statute’s legislative history 15 Id § 230 c 2 16 Id emphasis added 17 Stratton Oakmont Inc v Prodigy Services Co 23 Media L Rep 1794 N Y Sup Ct 1995 18 H R Rep No 104–458 1996 Conf Rep as reprinted in 1996 U S C C A N 10 emphasis added 5 While the Conference Report refers to this as “ o ne of the specific purposes” of section 230 it seems to be the principal or perhaps the only purpose The report doesn't describe any other purposes beyond supporting “the important federal policy of empowering parents to determine the content of communications their children receive through interactive computer services ”19 Congressman Cox thought it was “surpassingly stupid” that the Prodigy court had punished the platform for deleting a post for offensiveness 20 He was right and we can thank his forethought and careful lawyering for much of the flourishing of the Internet since 1996 What Section 230 Immunity Actually Depends On Sen Cruz is right about one thing Section 230 immunity was never intended to be absolute 21 But he misunderstands the limiting principles written into the statute To start Section 230 e “Effect on other laws” does not “impair the enforcement of … any … Federal criminal statute ”22 Two other key limiting principles qualify the immunity conferred upon website operators but neither could be used to justify any kind of “neutrality” requirement 1 Section 230 Does Not Protect Websites Responsible for the “Development” of Content The most important limit on Section 230 is also the least obvious because it is built into the statute’s two key definitions A website operator is only protected by Section 230 for liability regarding content created by another “Information content provider ” only insofar as it is an “Interactive computer service ” A website operator becomes an “Information content provider ” and thus gives up its immunity whenever it becomes “responsible in whole or in part for the creation or development of information provided through the Internet or any other interactive computer service ” 23 Concretely this means that Facebook is not protected by Section 230 for the content it creates such as Facebook Watch a program launched last year with a $1 billion annual budget to create original video content to compete with other video platforms e g YouTube Netflix Amazon Streaming and Apple 19 Fair Hous Council of San Fernando Valley v Roommates Com LLC 521 F 3d 1157 1163 9th Cir 2008 TechFreedom Armchair Discussion with Former Congressman Christopher Cox YOUTUBE Aug 10 2017 https www youtube com watch v iBEWXIn0JUY t 3m55s at 4 06 20 See Barnes v Yahoo Inc 570 F 3d 1096 1100 9th Cir 2009 holding that the CDA does not declare “a general immunity from liability deriving from third-party content” Roommates com 521 F 3d at 1164 noting CDA was not “meant to create a lawless no-man's land on the Internet” 21 22 47 U S C § 230 e 1 23 47 U S C § 230 f 2 3 6 Streaming 24 Similarly if Facebook created political content that would not be protected by Section 230 But Section 230 c 1 immunity does not depend on whether an operator exercises its editorial discretion to favor one side of a political issue or another 25 Instead the immunity applies to all site operators regardless of their neutrality as long as they are not responsible for “developing” user content Thus a website can decide which user content to feature for example to suit its political agenda while remaining fully protected by Section 230 c 1 What it may not do is help draft or edit that content in a way that changes its meaning As the Ninth Circuit noted in its 2008 panel decision in Fair Housing Council v Roommates com While “a website operator who edits user-created content retains his immunity for any illegality in the user-created content … a website operator who edits in a manner that contributes to the alleged illegality is directly involved in the alleged illegality and thus not immune ”26 Beyond that the courts have set aside Section 230 immunity only in very limited circumstances The most important case on this issue is Roommates where the website played middleman between would-be renters and those looking to rent out rooms Each new user was required to answer basic demographic questions about their race gender and sexuality and their roommate preferences — questions that facilitated housing discrimination and thus were potentially illegal even to ask under the federal Fair Housing Act 27 The court held that the site was “undoubtedly the ‘information content provider’ as to the questions and can claim no immunity for posting them on its website or for forcing subscribers to answer them as a condition of using its services ” 28 In addition the court found the site “responsible” for the development of profiles based on this information and of search tools based upon this information Neither Roommates nor any of its progeny would suggest that a website operator could become “responsible” for “development” of user content even by soliciting or inferring inDeepa Seetharaman Facebook Is Willing to Spend Big in Video Push WALL STREET JOURNAL Sept 8 2017 https www wsj com articles facebook-is-willing-to-spend-big-in-video-push-1504863181 24 In fact were Section 230 immunity dependent upon on whether an operator exercises its editorial discretion in a politically neutral manner it would very likely be held unconstitutional as a violation of the First Amendment See e g Fort Wayne Books Inc v Indiana 489 U S 46 1989 recognizing that expressive materials are entitled to presumptive First Amendment protection Citizens United v Fed Election Comm’n 558 U S 310 340 2010 holding that “political speech must prevail against laws that would suppress it whether by design or inadvertence ” 25 26 Roommates com 521 F 3d at 1169 27 Id at 1161-62 28 Id at 1164 7 formation about users’ political interests or preferences 29 The key thing about the Roommates decision is that the information collected from users was inherently illegal Ultimately in 2012 the Ninth Circuit decided that applying the Fair Housing Act to roommate rentals would raise serious constitutional concerns — despite the otherwise clear illegality of the content in question 30 By contrast not only is information about political preferences legal it is the most highly protected form of free expression under the First Amendment 31 Roommates is notable for a second more specific reason it was the first court decision to discuss “neutrality” as part of the analysis of Section 230 Several subsequent decisions have also mentioned the term citing Roommates 32 However in context it is obvious that what the court was talking about had nothing whatsoever to do with political neutrality If an individual uses an ordinary search engine to query for a “white roommate ” the search engine has not contributed to any alleged unlawfulness in the individual’s conduct providing neutral tools to carry out what may be unlawful or illicit searches does not amount to development for purposes of the immunity exception 33 In short Roommates’ “neutrality” test is based on inducement of illegal activity not the level of involvement or manipulation of content — for a political agenda or otherwise 2 Political Bias Alone Will Not Cause a Website to Lose Its Section 230 c 2 A Immunity for “Good Faith” Content Moderation The overwhelming majority of Section 230 cases turn on the 230 c 1 immunity from liability as publishers A separate immunity Section 230 c 2 A protects decisions to “re- Roommates 521 F 3d at 1163–64 noting “Congress sought to immunize the removal of user-generated content not the creation of content “ S ection 230 provides ‘Good Samaritan’ protections from civil liability for providers of an interactive computer service for actions to restrict access to objectionable online material ” See also Fields v Twitter Inc 200 F Supp 3d 964 969 N D Cal 2016 citing Barnes 570 F 3d at 1100–01 recognizing that “section 230 c 1 protects from liability only a a provider or user of an interactive computer service b that the plaintiff seeks to treat as a publisher or speaker c of information provided by another information content provider ” 29 30 Fair Hous Council v Roommate com LLC 666 F 3d 1216 1223 9th Cir 2012 appeal after remand See e g Citizens United v Fed Election Comm’n 558 U S 310 365 2010 “No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations ” Eu v San Francisco County Democratic Central Comm 489 U S 214 223 109 1989 noting the First Amendment “‘has its fullest and most urgent application’ to speech uttered during a campaign for political office ” internal citations omitted 31 See J S v Village Voice Media Holdings 2015 WL 5164599 Wash Sup Ct Sept 3 2015 Dyroff v The Ultimate Software Group Inc 2017 WL 5665670 N D Cal Nov 26 2017 32 33 Roommates 521 F 3d at 1169 8 strict access to or availability of material that the provider … considers to be … objectionable ” This immunity only applies if the website acts “in good faith ” 34 Because most cases are resolved on 230 c 1 grounds there is relatively little case law on the meaning of “good faith ” In 2011 Santa Clara Law Prof Eric Goldman having done an exhaustive survey of Section 230 case law concluded that “no online provider has lost § 230 c 2 immunity because it did not make a good faith filtering decision Nevertheless a few cases have given examples of some provider actions that may not be in good faith For example anticompetitive motivations might disqualify an online provider from § 230 c 2 ”35 In another case “the judge found that an online provider’s failure to articulate a reason for its blocking decision could be bad faith ” 36 Goldman concluded As these examples illustrate the statute’s “good faith” reference invites judges to introduce their own normative values into the consideration Fortunately most judges do not introduce their own normative values into the statutory inquiry Several § 230 c 2 cases have held that good faith is determined subjectively not objectively In that circumstance courts should accept any justification for account termination proffered by the online provider even if that justification is ultimately pretextual 37 Having consulted with Prof Goldman we are not aware of any court decisions tying “good faith” in content moderation to political neutrality While Section 230 c 2 A is rarely invoked by litigation it would and should protect Facebook or any other website operator accused of removing content or shutting down an account or user profile because the operator found the content or account “objectionable” on purely political grounds Attempting to read a political neutrality requirement into Section 230 would raise the First Amendment problems discussed below 38 34 47 U S C § 230 c 2 A Eric Goldman Online User Account Termination and 47 U S C §230 c 2 2 UC Irvine Law Rev 659 665 2012 available at https ssrn com abstract 1934310 35 Id citing Smith v Trusted Universal Standards in Elec Transactions No 09-4567 RBK KMW 2011 WL 900096 at 25–26 D N J Mar 15 2011 36 Id citing on the subjectivity of good faith Zango Inc v Kaspersky Lab Inc 568 F 3d 1169 9th Cir 2009 e360Insight LLC v Comcast Corp 546 F Supp 2d 605 N D Ill 2008 But see Nat’l Numismatic Certification LLC v eBay Inc No 6 08-cv-42-Orl-19GJK 2008 WL 2704404 M D Fla July 8 2008 37 38 See infra at 16-22 9 III Policy What Should Platforms Be Responsible For Weeks after his remarks at a Senate Commerce Committee hearing insisting that Congress had intended Section 230 to apply only to “neutral public platforms ” Cruz appeared to change gears 39 In an op-ed he instead argued that Section 230 should work that way announcing his intention to introduce legislation to amend Section 230 to that effect under the headline “Facebook has been censoring or suppressing conservative speech for years ”40 The recent House and Senate hearings with Facebook CEO Mark Zuckerberg were supposed to focus on Facebook’s failure to do enough to stop misuse of user data by Cambridge Analytica to influence the 2016 election Ironically much of the questioning from lawmakers focused on the opposite problem their concern that Facebook was doing too much to moderate user content on the site The two concerns are not entirely inconsistent greater transparency for example could help to address both concerns But there is yet a jarring contradiction between the notions in essence that Facebook does too little to stop speech we don’t like and too much to stop speech we do like — or that comes from people who share our views In effect those proposing to condition Section 230 immunity on political “neutrality” are arguing for a “Fairness Doctrine” for the Internet Their focus on amending Section 230 may simply reflect the fact that imposing such a Fairness Doctrine would be obviously unconstitutional Many opponents of Internet regulation have compared “net neutrality” to the Fairness Doctrine This is at best a very rough analogy for reasons explained below But requiring website operators to be neutral in their curation moderation and presentation of user content would be a very close analogy to the original Fairness Doctrine — and a terrible idea for all the same reasons that the original Fairness Doctrine was and many additional reasons unique to the lightning pace and unfathomable sale of the Internet A Brief History of the Fairness Doctrine The Federal Radio Commission established under the Radio Act of 1927 required broadcasters to give ample play for the free and fair competition of opposing views on issues of Sen Ted Cruz Facebook has been censoring or suppressing conservative speech for years FOX NEWS Apr 11 2018 http www foxnews com opinion 2018 04 11 sen-ted-cruz-facebook-has-been-censoring-orsuppressing-conservative-speech-for-years html 39 40 Id 10 public importance 41 The Federal Communications Commission as the FRC was renamed in 1934 when Congress gave it broader powers codified this general notion as the Fairness Doctrine in 1949 “the public interest requires ample play for the free and fair competition of opposing views and the commission believes that the principle applies to all discussion of importance to the public ”42 The FCC imposed two duties on broadcast licensees 1 to “adequately cover issues of public importance” and 2 to ensure that the various positions taken by responsible groups were aired 43 In practice this meant that licensees were obligated to give air time on demand to anyone seeking to voice an alternative opinion or to reply to an “attack ”44 In 1969 the Supreme Court upheld the fairness doctrine in Red Lion Broadcasting Co v FCC 45 After journalist Fred Cook criticized Republican Presidential nominee Barry Goldwater during the 1964 campaign a radio station owned by the Red Lion Broadcasting Corporation aired a program making several defamatory claims about Cook most notably that he had been working for a Communist publication The FCC’s personal attack rules made broadcasters responsible for giving the person attacked “a tape transcript or summary” of the broadcast to that public figure and offer that person a reasonable opportunity to reply — for free if necessary 46 Justice White writing for a unanimous court emphasized the unique nature of broadcasting as evident to Congress in enacting the Federal Radio Commission in 1927 “It quickly became apparent that broadcast frequencies constituted a scarce resource whose use could be regulated and rationalized only by the Government Without government control the medium would be of little use because of the cacophony of competing voices none of which could be clearly and predictably heard ” 47 On this factual finding turned the outcome of the case “Although broadcasting is clearly a medium affected by a First Amendment interest differences in the characteristics of new media justify differences in the First Amendment standards applied to them ” 48 41 Great Lakes Broad Co 3 F R C ANN REP 32 33 1929 42 Report on Editorializing by Broadcast Licensees 13 F C C 2d 1246 1949 Id at 1249 accord United Broad Co 10 F C C 515 517 1945 Cullman Broad Co 40 F C C 576 577 1963 43 44 Broadcast Procedure Manual 49 F C C 2d at 6 1974 45 Red Lion Broadcasting Co v F C C 395 U S 367 1969 46 Billings Broad Co 40 F C C 518 520 1962 47 Red Lion Broad Co v F C C 395 U S 367 376 1969 48 Id at 387 11 1 How the Fairness Doctrine Was Repealed In Red Lion the Supreme Court cautioned that “if experience with the administration of these doctrines indicates that they have the net effect of reducing rather than enhancing the volume and quality of coverage there will be time enough to reconsider the constitutional implications ”49 The FCC did study the issue and in 1985 found just such chilling effects 50 In 1987 the FCC effectively abolished the Fairness Doctrine 51 Congress then controlled by Democrats passed legislation to restore the Fairness Doctrine 52 President Reagan vetoed the bill declaring “This type of content-based regulation by the federal government is in my judgment antagonistic to the freedom of expression guaranteed by the First Amendment In any other medium besides broadcasting such federal policing of the editorial judgment of journalists would be unthinkable ” 53 Reagan continued The Supreme Court indicated in Red Lion a willingness to reconsider the appropriateness of the fairness doctrine if it reduced rather than enhanced broadcast coverage In a later case the Court acknowledged the changes in the technological and economic environment in which broadcasters operate It may now be fairly concluded that the growth in the number of available media outlets does indeed outweigh whatever justifications may have seemed to exist at the period during which the doctrine was developed The FCC itself has concluded that the doctrine is an unnecessary and detrimental regulatory mechanism After a massive study of the effects of its own rule the FCC found in 1985 that the recent explosion in the number of new information sources such as cable television has clearly made the fairness doctrine unnecessary Furthermore the FCC found that the doctrine in fact inhibits broadcasters from presenting controversial issues of public importance and thus defeats its own purpose 54 49 Id at 393 General Fairness Doctrine Obligations of Broadcast Licensees Report 50 Fed Reg 35418 1985 available at https ia800204 us archive org 24 items FairnessReport 102Book1FCC2d145 pdf see also Mark A Conrad The Demise of the Fairness Doctrine A Blow for Citizen Access 41 FED COMM L J 161 176 1989 “Regarding the First Amendment the 1985 report displayed doubts about the Doctrine's constitutionality believing it ‘chills' speech and requires the government to act as a de facto censor ” 50 51 In Re Complaint of Syracuse Peace Council against TV Station WTVH Syracuse N Y Memorandum Opinion and Order 2 FCC Rcd 5043 para 82 1987 recons denied 3 FCC Red 2035 1988 aff'd sub nom Syracuse Peace Council v FCC 867 F 2d 654 D C Cir 1989 cert denied 493 U S 1019 1990 Fairness in Broadcasting Act of 1987 H R 1937 100th Cong 1st Sess 1987 S 742 100th Cong 1st Sess 1987 52 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 53 54 Id 12 President Reagan made clear as the FCC itself had done in its 1985 report that the original rationale for the Fairness Doctrine rested on shaky constitutional foundations regardless of the scarcity of broadcast spectrum or the degree of competition on the airwaves Quite apart from these technological advances we 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 55 2 How the Fairness Doctrine Backfired — And Why It Was Repealed To understand the dangers of creating a Fairness Doctrine for the Internet today one should begin with the FCC’s 1985 Report56 which identified two fundamental perverse results of the Fairness Doctrine While the fairness doctrine has the laudatory purpose of encouraging the presentation of diverse viewpoints we fear that in operation it may have the paradoxical effect of actually inhibiting the expression of a wide spectrum of opinion on controversial issues of public importance In this regard our concern is that the administration of the fairness doctrine has unintentionally resulted in stifling viewpoints which may be unorthodox unpopular or unestablished First the requirement to present balanced programming under the second prong of the fairness doctrine is in itself a government regulation that inexorably favors orthodox viewpoints… I t is only major or significant opinions which are within the scope of the regulatory obligation to provide contrasting viewpoints As a consequence the fairness doctrine makes a regulatory distinction between two different categories of opinions those which are significant enough to warrant broadcast coverage under the fairness doctrine and opinions which do not rise to the level of a major viewpoint of sufficient public importance that triggers responsive programming obligations While the broadcaster in the first instance is responsible for evaluating the viewpoints and shades of opinion which are to be presented” we are obligated to review the reasonableness of the broadcaster's evaluation As a consequence the fairness doctrine in operation inextricably involves the Commission in the dangerous 55 Id 56 Report Concerning General Fairness Doctrine Obligations of Broadcast Licensees 102 F C C 2d 143 1985 13 task of evaluating the merits of particular viewpoints This evaluation has serious First Amendment ramifications As the Supreme Court has stated If there is any fixed star in our constitutional constellation it is that no official high or petty can prescribe what shall be orthodox in politics nationalism religion or other matters of opinion… 57 Second… our own administrative enforcement of the doctrine provides some support for the contention that some “controversial viewpoint s are being screened out in favor of the dreary blandness of a more acceptable opinion Broadcasters who have been denied or threatened with a denial of the renewal of their licenses due to fairness doctrine violations have generally not been those which have provided only minimal coverage of controversial and important public issues Indeed some licensees that we have not renewed or threatened with non-renewal have presented controversial issue programming far in excess of that aired by the typical licensee In a number of situations it was the licenses of broadcasters who aired opinions which many in society found to be abhorrent or extreme which were placed in jeopardy due to allegations of fairness doctrine violations In conclusion we are extremely concerned over the potential of the fairness doctrine in operation to interject the government even unintentionally into the position of favoring one type of opinion over another To the extent that the doctrine has this effect it both disserves the interest of the public in an unencumbered marketplace of ideas and contravenes the fundamental purposes of the First Amendment 58 This indeed is precisely why conservatives had rallied against the Fairness Doctrine for decades government policing of broadcast speech suppressed heterodox views—such as those of conservatives—in favor of bland orthodoxy Indeed enforcement of the doctrine was sometimes intended to enforce this orthodoxy Most notably President Kennedy’s FCC used the Fairness Doctrine to harass and intimidate right-wing broadcasters 59 The Practical Effect of Amending Section 230 What would amending Section 230 to require platform neutrality mean in practice 57 Id quoting West Virginia State Board of Education v Barnette 319 U S 624 642 1943 58 Id internal citation omitted emphasis added See Adrian Cronauer The Fairness Doctrine A Solution in Search of a Problem 47 FED COMMC’NS L J 50 55 1994 available at http www repository law indiana edu fclj vol47 iss1 6 “Bill Ruder an Assistant Secretary of Commerce under President Kennedy told how Kennedy's administration used the Fairness Doctrine to challenge and harass right-wing broadcasters in the hope the challenges would be so costly that these broadcasters would find it too expensive to continue their broadcasts ” 59 14 1 The Fairness Doctrine Is Inherently Arbitrary as Companies Will Never Know What Is “Controversial” Until After the Fact In 1984 one dissenting FCC Commissioner recognized the essential problem with the Fairness Doctrine Even conceding that the complainant Peace Council’s definition of the issue in this proceeding is correct however I believe that the majority misallocates and misapplies the Peace Council’s burden to show that the identified issue was ‘controversial’ and of public importance It is important here to note that it is not the licensee’s obligation to show the lack of controversiality or public importance Likewise it is not the Commission’s duty to read between the lines or assume that a particular issue is controversial Rather it is the complainant’s burden— and by design it is a substantial burden—to demonstrate the existence of a vigorous debate with substantial elements of the community in opposition to one another 60 In other words broadcasters could never know in advance what issues would be sufficiently “controversial” to trigger the Fairness Doctrine’s right of reply This uncertainty and the fear of losing their broadcast license — the FCC’s death penalty — discouraged broadcasters from addressing issues that might have any chance of being considered controversial This problem will be far more severe on the Internet for several reasons Broadcasters had to decide which issues their employees should cover in a limited block of time By contrast website operators can facilitate the sharing of content on a staggering almost infinite array of topics among literally billions of users — and the discourse among users can shift rapidly in a matter of minutes Just contrast the broadcast era’s concept of hot news the nightly headline with Twitter or Facebook’s “trending topics ” which can shift many times a day and emerge out of nowhere 61 In practical terms website operators will likely respond to a Fairness Doctrine for the Internet simply by squelching all political discussion Losing what the Supreme Court hailed as early as 1997 as the “vast democratic forums of the Internet”62 would for all the recent hand-wringing about the potential for political manipulation online be a great loss for America — and utterly contrary to the purposes of the First Amendment in maximizing 60 Fairness Report 48 F C C 2d 1 12 1974 Fred McConnell YouTube is 10 years old The evolution of online video THE GUARDIAN Feb 13 2015 https www theguardian com technology 2015 feb 13 youtube-10-years-old-evolution-of-online-video 300 Hours of video are uploaded every minute to YouTube 61 62 Reno v Am Civil Liberties Union 521 U S 844 868 1997 15 rather than reducing speech It would also ironically very likely hurt the political right by restoring the dominance of a so-called “mainstream media” they decry If Twitter had decided not to allow political candidates to use their forum for fear of the legal obligations doing so would entail and the scrutiny they would receive regarding their “fairness” in handling such accounts Donald Trump would undoubtedly never have become President Whether this particular outcome would have been good or bad is immaterial it is simply not for the government to decide 2 Any Fairness Doctrine Will Be Subject to Political Manipulation The above describes the unintended consequences of the Fairness Doctrine assuming it was administered neutrally focusing on the problem of the inherent uncertainty that would face website operators Even more disturbing is the potential for government actors to manipulate a Fairness Doctrine for the Internet to suit their own political ends Presumably a Fairness Doctrine for the Internet would not be administered by the Federal Communications Commission since websites unlike broadcasters are not licensed by the government One might take some comfort in the notion that a Fairness Doctrine for the Internet would thus be administered by the courts rather than political appointees We find little comfort in this prospect — for the same reasons a right of access for newspapers would have been a bad idea in the 1970s The powerful will always be at a significant advantage in using the courts to promote their own agenda This is especially true for elected officeholders and most true for the President The fact that the current occupant of the White House has regularly threatened to use the courts against this critics and in fact has used the courts to enforce non-disclosure agreements to silence those he does not want to speak should give great pause to anyone considering empowering the government to force website operators to satisfy a standard so vague as “neutrality” regarding “controversial” matters a category they cannot define in advance 3 Small Companies and Startups Will Be Disadvantaged and Incumbents Like Facebook Will Be Protected from Competition Finally while justified primarily as a regulation needed because of the vast scale and importance of Facebook and possibly Twitter or YouTube it is difficult to see how the Fairness Doctrine could be applied to just a handful of websites Even if its initial application were limited to websites above a certain size threshold that threshold would be inherently arbitrary and calls to lower it to cover more websites would be inevitable Indeed if the statute did not specify a particular size the question of which websites would be subject to the Fairness Doctrine would be left to the courts and thus could be applied quite widely 16 Ironically a Fairness Doctrine for social media would benefit the largest websites by insulating them against competition from smaller sites large well-funded companies like Facebook Twitter and Google already have thousands of people handling content moderation issues and the resources to face litigation over how they administer their platforms While they would surely resent having to administer such a vague and arbitrary standard they would also be able to manage the burden while the startups vying to become the next Facebook Twitter or Google would not Investors would be reluctant to invest in startups that face the risk of heavy legal liability for failing to comply with the Fairness Doctrine Those startups that do get off the ground would be more likely to plan for acquisition by an existing tech giant than for building a successful independent business This is perhaps the most supreme irony of those concerned about the “power of Facebook ” IV Constitutional Considerations A Fairness Doctrine for the Internet is not only a bad idea it is also unconstitutional — whether enforced as a regulatory mandate or as a condition of Section 230 immunity The First Amendment Bars Imposing the Fairness Doctrine on the Internet As noted above the Supreme Court upheld the Fairness Doctrine in Red Lion 1969 because of “spectrum scarcity” and this unique technological limitation justified denying broadcasters full First Amendment rights But just six years later in Miami Herald Publishing Co v Tornillo the Court refused to extend something like the Fairness Doctrine specifically a right of reply for political candidates criticized in newspaper to newspapers Faced with the penalties that would accrue to any newspaper that published news or commentary arguably within the reach of the right-of-access statute editors might well conclude that the safe course is to avoid controversy Therefore under the operation of the Florida statute political and electoral coverage would be blunted or reduced Government-enforced right of access inescapably dampens the vigor and limits the variety of public debate 63 The Supreme Court has been crystal clear that the Internet cannot be denied the full protection of the First Amendment — i e that it is more like newspapers than broadcasting If anything its decisions have implied that Red Lion’s refusal to grant full First Amendment Miami Herald Publishing Co v Tornillo 418 U S 241 257 1975 quoting New York Times Co v Sullivan 376 U S 254 279 1964 63 17 Rights to broadcasting may no longer be valid due to technological change and may never have been valid at all In Reno v ACLU the Court hailed the Internet as “a unique and wholly new medium of worldwide human communication”64 Other than Section 230 the Court struck down all of the Communications Decency Act of 1996 — an Internet censorship statute that was bolted onto Rep Cox’s stand-alone bill containing what is now Section 230 — as an unconstitutional violation of the First Amendment rights of both Internet users and website operators 65 The Court clearly distinguished the Internet from broadcasting regulation on multiple grounds most relevant here T he Commission's order regulating broadcasting applied to a medium which as a matter of history had received the most limited First Amendment protection in large part because warnings could not adequately protect the listener from unexpected program content The Internet however has no comparable history Moreover the District Court found that the risk of encountering indecent material by accident is remote because a series of affirmative steps is required to access specific material 66 In Brown v EMA the Court not only extended full First Amendment protection to video games it made clear that it will do so for all new media Like the protected books plays and movies that preceded them video games communicate ideas—and even social messages—through many familiar literary devices such as characters dialogue plot and music and through features distinctive to the medium such as the player’s interaction with the virtual world That suffices to confer First Amendment protection Under our Constitution “esthetic and moral judgments about art and literature are for the individual to make not for the Government to decree even with the mandate or approval of a majority ” United States v Playboy Entertainment Group Inc 529 U S 803 818 2000 And whatever the challenges of applying the Constitution to everadvancing technology “the basic principles of freedom of speech and the 64 Reno v ACLU 521 U S at 850 Id at 874 “We are persuaded that the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech In order to deny minors access to potentially harmful speech the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve ” 65 66 Id at 867 18 press like the First Amendment’s command do not vary” when a new and different medium for communication appears 67 Last year a unanimous Court struck down a state law restricting how sex offenders could use social networking sites declaring While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions we cannot appreciate yet its full dimensions and vast potential to alter how we think express ourselves and define who we want to be The forces and directions of the Internet are so new so protean and so far reaching that courts must be conscious that what they say today might be obsolete tomorrow This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet As a result the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium 68 Indeed the Court concluded that “to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights ” 69 The Fairness Doctrine survived legal challenge in Red Lion only because broadcasting did not enjoy full First Amendment protection There is simply no basis for expecting the courts to deny the full First Amendment protection to the Internet Social Media Companies Are Not State Actors Some scholars have suggested that social media platforms notably Facebook may qualify as “state actors” under the Supreme Court’s 1946 decision in Marsh v Alabama 70 and thus that their speech “regulations must be content-neutral or pass strict scrutiny ” 71 Marsh a Jehovah’s witness was arrested for criminal trespassing while distributing religious literature on the sidewalk of a fully corporate town 72 The Court found that this fully owned by a corporation town had all the characteristics of any other American town and Brown v Entm't Merchants Ass’n 564 U S 786 790 2011 quoting Joseph Burstyn Inc v Wilson 343 U S 495 503 1952 emphasis added 67 68 Packingham v North Carolina 137 S Ct 1730 1736 U S 2017 69 Id at 1737 70 Marsh v Alabama 326 U S 501 1946 71 Trevor Puetz Facebook The New Town Square 44 Sw L Rev 385 2014 72 Id at 502 19 their actions in arresting Marsh were thus tantamount to “state action ” 73 Later Supreme Court developed its jurisprudence on this “public function” of private entities In assessing a shopping mall’s squares as public spaces for protest in Hudgens v NLRB the Court held that merely being open to the public is not enough to qualify as performing a public function the business must actually perform governmental functions as in Marsh 74 It is extremely unlikely that any court would ever decide that Facebook Twitter or such social networks are state actors under Marsh The Court has interpreted Marsh so narrowly that it is hard to see how the decision could ever be applied to social media websites other perhaps than those built for an obviously governmental purpose Consider Justice Stewart’s opinion for the majority in Hudgens v NLRB 1976 quoting Justice Black who had written the Court’s opinion in Marsh in a dissent from a subsequent decision extending Marsh to a shopping center The question is under what circumstances can private property be treated as though it were public The answer that Marsh gives is when that property has taken on all the attributes of a town i e residential buildings streets a system of sewers a sewage disposal plant and a business block' on which business places are situated I can find nothing in Marsh which indicates that if one of these features is present e g a business district this is sufficient for the Court to confiscate a part of an owner's private property and give its use to people who want to picket on it 75 The Supreme Court did nonetheless in 1980 uphold a provision of the California constitution that guaranteed the right to distribute pamphlets in privately owned shopping malls 76 But that decision can be distinguished on each of its most important First Amendment grounds First most notably while shopping mall owners do have speech rights just as any corporation does they are obviously not in the business of facilitating speech unlike website operators or newspapers Second and relatedly the Court emphasized that California shopping mall owners could “expressly disavow any connection with the message by simply posting signs in the area where the speakers or handbillers stand Such signs for example could disclaim any spon73 Id at 502-509 74 Hudgens v NLRB 424 U S 507 519 1976 75 Id at 516 76 Pruneyard Shopping Center v Robins 447 U S 74 88 1980 20 sorship of the message and could explain that the persons are communicating their own messages by virtue of state law ”77 While it is possible to imagine such disclaimers for online content actually implementing them would be far more complicated given the nature of online content Applying such labels on all content on the site would be enormously disruptive to the user experience and also dilute the value of the disclosure But applying the label only to content that the website specifically wishes to disavow would require a separate kind of label a different design challenge This might ironically require websites to be more aggressively non-neutral — by having to err on the side of labeling more content as objectionable to avoid any potential association than they might simply have taken down But perhaps most importantly the Pruneyard court noted that it had in Tornillo struck down a right of access to newspapers because the law might “dampe n the vigor and limi t the variety of public debate but concluded that “ t hese concerns obviously are not present here 78 That concern about discouraging debate is very obviously “present here ” for all the reasons explained above a Fairness Doctrine for the Internet would inevitably chill online discussion of controversial and political topics No one can really predict the development of technology but as for foreseeable future platforms like Facebook won’t be held to be equivalent to corporate towns or even shopping malls Whatever their degree of control within their “community ” they are simply one way to reach a particular audience there are always alternatives in a way that is not true of corporate towns which have complete control of what happens within their borders Furthermore adjudicating every dispute over moderation of potentially objectionable content under First Amendment standards would as noted above be so impracticable that websites would simply close or heavily restrict the ability to discuss “controversial” issues — thus overwhelming any First Amendment interest in promoting “neutral” free expression Government May Not Require Speakers to Give Up Their First Amendment Rights in Exchange for a Benefit Including Section 230 Immunity Senators Cruz and Graham seem to be arguing instead of mandating the Fairness Doctrine for online platforms why could not the government simply require it as a condition of receiving the protections of Section 230 from liability for third party content 77 Id at 86 78 Id at 88 21 Courts have generally held that requiring speakers to give up their First Amendment rights in exchange for a privilege be it Federal funding or any other type of Federal benefit still triggers First Amendment scrutiny and have generally struck down such conditions as unconstitutional For example in FCC v League of Women Voters 468 U S 364 1984 the Court declined to revisit the scarcity rationale of Red Lion but did reiterate that the FCC was free to do so it did however strike down as an unconstitutional condition the requirement that recipients of grants from the Corporation for Public Broadcasting refrain from all editorializing In sum § 399's broad ban on all editorializing by every station that receives CPB funds far exceeds what is necessary to protect against the risk of governmental interference or to prevent the public from assuming that editorials by public broadcasting stations represent the official view of government The regulation impermissibly sweeps within its prohibition a wide range of speech by wholly private stations on topics that do not take a directly partisan stand or that have nothing whatever to do with federal state or local government 79 Many other cases illustrate the same point whether imposed through mandate or through condition upon receipt of a privilege the government would have to meet the exacting standards of First Amendment review As the Court noted in 1972 For at least a quarter-century this Court has made clear that even though a person has no right to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons there are some reasons upon which the government may not rely It may not deny a benefit to a person on a basis that infringes his constitutionally protected interest especially his interest in freedom of speech 80 While most such cases focus on conditioning eligibility for taxpayer subsidies the court recognized that it applies to other privileges such as employment and most similar to the legal immunity conferred by Section 230 tax exemptions 81 “The principle is more general than just trading a constitutional right in exchange for money Professor Larry Tribe summarized the case law thusly “government may not condition the receipt of its benefits upon the nonassertion of constitutional rights even if receipt of such benefits is in all other respects a 'mere privilege ”82 79 See FCC v League of Women Voters 468 U S 364 1984 80 Perry v Sindermann 408 U S 593 597 1972 81 Id citing Sherbert v Verner 374 U S 398 374 404-405 1963 82 L TRIBE AMERICAN CONSTITUTIONAL LAW 510 1st ed 1978 22 V Congress Botched the Recent Amendment of Section 230 SESTA FOSTA Last September as Congress was considering amending Section 230 for the first time TechFreedom said the following in a letter to Senate leadership We do not treat Section 230 as sacrosanct We are open to a careful reassessment of the statute But the rush to pass legislation as far-reaching as SESTA without a clear record of a how the bill would work or b what state prosecutions and civil suits are possible under current 230 case law understandably stokes the worst fears of Section 230 absolutists that any amendment of the statute will wreak havoc on the Internet 83 Our worst fears were confirmed despite the best efforts of this Committee Congress as a whole demonstrated itself uninterested in taking the time to understand Section 230 let alone amend it in a thoughtful or tailored way What ultimately happened was the unfortunate result of good intentions mediated through an appallingly poor and rushed process the Senate and the House bills were stitched together in the best tradition of Dr Frankenstein The House bill “Allow State and Victims to Fight Online Sex Trafficking Act of 2017” FOSTA 84 surgically amended Section 230 and focused on creating a new federal crime designed to ease prosecution of websites like Backpage com and ensure victims received restitution That bill went through a very thoughtful review and editing by House Judiciary Committee whose staff took the time to study and understand Section 230 That bill earned the support of TechFreedom and other organizations concerned with both online free speech and effectively protecting the victims of sex trafficking By contrast the Senate Commerce Committee’s Stop Enabling Sex Traffickers Act of 2017 SESTA 85 bypassed both the Senate Judiciary Committee and the House Judiciary Committee before being attached to FOSTA on the House floor SESTA reflected a profound misunderstanding of Section 230 and exposed legitimate website operators to broad civil liability and state prosecution in ways that created a perverse incentive to do less rather than TechFreedom’s Letter to Senate’s Leadership Congress Shouldn’t Rush SESTA Amendments to Section 230 September 11 2017 available at http docs techfreedom org TechFreedom_Letter_re_SESTA_9-11-17 pdf 83 Allow States and Victims to Fight Online Sex Trafficking Act of 2017 H R 1865 available at https judiciary house gov wp-content uploads 2017 12 ANS-HR-1865 pdf 84 Stop Enabling Sex Traffickers Act of 2017 115 S 1693 2017 S 1693 115 S 1693 available at https www congress gov bill 115th-congress senate-bill 1693 85 23 more and maybe nothing at all to monitoring user activity on their sites and assist law enforcement 86 This Committee noted that SESTA for all the problems it created would likely fail to help prosecutors 87 The Department of Justice called portions of the bill unconstitutional 88 but it was too late The horns were tooted self-congratulatory press releases issued and pats on the back self-administered We are already seeing the negative effects of this rushed legislation Websites are shutting down whole sections of content 89 Meanwhile what we said all along is becoming clear law enforcement and civil plaintiffs already had the legal tools they needed to prosecute and sue bad actors without using SESTA 90 The House Judiciary Committee demonstrated remarkable thoughtfulness and mustered great expertise throughout this process We hope this Committee will assert itself in any future discussion of Section 230 or regulating online platforms as the Congressional Committee with subject matter expertise on issues impacting the judiciary That will require assessing missteps made in passing the SESTA FOSTA hybrid bill and the shortcomings of that bill Above all this experience highlights the need for lawmakers to proceed with extreme caution VI A Word about “Net Neutrality” in Relation to “Platform Neutrality” TechFreedom has been a leading critic of the FCC’s attempts to regulate the Internet in the name of net neutrality — having for instance filed by far the longest set of comments in TechFreedom’s Letter to Senate and House Leadership Senate Commerce Committee House Commerce Committee Senate Judiciary and House Judiciary Committees on the SESTA-FOSTA Hybrid Bill February 23 2018 available at http docs techfreedom org Letter_SESTA-FOSTA_Hybrid_2-23-18 pdf 86 H R Rep No 115-572 on H R 8165 Allow States and Victims to Fight Online Sex Trafficking Act of 2017 Feb 20 2018 available at https goo gl ars2x5 87 Letter from Department of Justice’s Assistant Attorney General Stepehen E Boyd to House Judiciary Committee Chairman Robert W Goodlatte February 27 2018 available at https assets documentcloud org documents 4390361 Views-Ltr-Re-H-R-1865-Allow-States-andVictims pdf 88 Craigslist FOSTA https www craigslist org about FOSTA last visited April 25 2018 7 AM Elizabeth Nolan Brown Hours After FOSTA passes Reddit Bans “Escorts” and “SugarDaddy” Communities REASON March 22 2018 available at https reason com blog 2018 03 22 reddit-bans-escort-subreddits Samantha Cole Sex Workers Say Porn on Google Drive Is Suddenly Disappearing MOTHERBOARD March 21 2018 3 07 PM available at https motherboard vice com en_us article 9kgwnp porn-on-google-drive-error 89 Eric Goldman More Aftermath from the Worst of Both Worlds FOSTA TECHNOLOGY AND MARKETING LAW BLOG April 23 2018 available at https blog ericgoldman org archives 2018 04 more-aftermath-from-theworst-of-both-worlds-fosta htm 90 24 the docket in 2014 91 and again in 2017 92 Indeed we joined the legal challenge to the FCC’s 2015 Open Internet Order as intervenors with our Petition for Certiorari currently pending before the Supreme Court 93 Our intervenor briefs formed the basis for the stinging dissents issued by Judges Kavanaugh and Brown from the D C Circuit’s denial of rehearing in the case 94 In short we do not trust the FCC with broad discretion to regulate the Internet on the issue of net neutrality any more than we would trust the FCC or any other agency or even the courts to implement a Fairness Doctrine for the Internet But our primary concern has always been the FCC’s attempts to invent broad authority over the Internet — authority that would go far beyond net neutrality itself Net neutrality principles properly understood have never been controversial and have always been supported by FCC Chairmen and lawmakers of both parties 95 The question has always been first and foremost one of implementation as Congress rather than unelected bureaucrats is best suited to answer these profound questions To this end we have supported legislation that would codify core net neutrality principles against blocking and throttling content without user consent and to require transparency regarding network operations 96 Here we simply note two key distinctions between “net neutrality” and the kind of “platform neutrality” being proposed First as a legal matter Section 230 applies equally to both 97 but as a practical matter ISPs and social media platforms do fundamentally differComments of TechFreedom and the International Center for Law and Economics In the Matter of Protecting and Promoting the Open Internet GN Docket No 14-28 Framework for Broadband Internet Service GN Docket No 10-127 Preserving the Open Internet GN Docket No 09-191 and Broadband Industry Practices WC Docket No 07-52 July 17 2014 available at http docs techfreedom org tf-icle_nn_legal_comments pdf 91 Reply Comments of TechFreedom In the Matter of Notice of Proposed Rulemaking Restoring Internet Freedom WC Docket No 17-108 Aug 30 2017 available at http docs techfreedom org TechFreedom_Reply_Comments_on_Open_Internet_Order pdf 92 See Brief for Intervenors for Petitioners at 30 United States Telecom Ass’n v FCC 825 F 3d 674 2016 No 15-1063 see also Reply Brief for Intervenors for Petitioners at 5 United States Telecom Ass’n v FCC 825 F 3d 674 2016 No 15-1063 Petition for Rehearing En Banc for Intervenors at 7 United States Telecom Ass’n v FCC 825 F 3d 674 2016 No 15-1063 93 See United States Telecom Ass’n v Fed Commc'ns Comm’n 855 F 3d 381 387 D C Cir 2017 “So understood Brand X dictates rejecting our dissenting colleague's argument based on the major rules doctrine … We note though that a group of intervenors led by TechFreedom makes such an argument ” 94 See Timothy B Lee A Republican proposal could be our best chance to save net neutrality VOX April 27 2017 https www vox com new-money 2017 1 26 14383040 thune-net-neutrality-bill noting that “In 2015 Sen Thune introduced legislation that he co-authored with his House counterpart Fred Upton R-MI that would have codified this basic understanding of network neutrality into the law The legislation would also have banned paid prioritization in which a technology or content company pays a broadband provider to carry its traffic faster than the traffic of competitors ” 95 See Berin Szóka Only Congress Not the FCC Can Fix Net Neutrality WIRED May 17 2017 https www wired com 2017 05 congress-not-fcc-can-fix-net-neutrality 96 97 See Reply Comments of TechFreedom supra note 92 at 40-47 25 ent things Namely ISPs deliver connectivity to essentially the entire Internet minus a very small number of websites deemed harmful Social media sites by contrast are expected by their users to block all kinds of offensive material depending on the purpose of the site How many users want pornography neo-Nazi propaganda ISIS beheadings etc popping up in their Facebook newsfeed Sites like Facebook invite users to report abusive or harmful content for removal We are not aware of any ISP that does anything comparable Second net neutrality regulation would not raise the kind of First Amendment concerns that a Fairness Doctrine for the Internet would raise because even the 2015 Open Internet Order made clear that it applies only to sites that hold themselves out to their customers as providing connectivity to essentially the entire Internet 98 By contrast social media platforms clearly disclose to their users that they reserve the right to remove objectionable content disable abusive accounts etc Breaking a general promise to users — including a promise of “neutrality” — will not cause a website to lose its Section 230 immunity In Barnes v Yahoo ¸ the Ninth Circuit held that Section 230 did not preempt a claim for promissory estoppel that was based on a specific promise made by a Yahoo employee that she would “personally walk the plaintiff’s complaint over to the division responsible for stopping unauthorized profiles and they would take care of it ”99 However the court made clear that its holding depended on having a clear and direct promise to an individual and that promises made in a website’s terms of service or in marketing materials do not create an obligation to remove content “a general monitoring policy or even an attempt to help a particular person on the part of an interactive computer service such as Yahoo does not suffice for contract liability ” 100 Finally the court was careful to limit its holding stating that Section 230 did require dismissal of the plaintiff’s negligent undertaking claim which was predicated upon Yahoo ’s failure to remove the profile after she notified the company that it was fake 101 As the Ninth Circuit made clear “a plaintiff cannot sue someone for publishing third-party content simply by changing the name of the theory from defamation to negligence ” and “ n or can he or she escape sec- United States Telecom 855 F 3d at 389 “While the net neutrality rule applies to those ISPs that hold themselves out as neutral indiscriminate conduits to internet content the converse is also true the rule does not apply to an ISP holding itself out as providing something other than a neutral indiscriminate pathway—i e an ISP making sufficiently clear to potential customers that it provides a filtered service involving the ISP's exercise of ‘editorial intervention ’” 98 99 Barnes v Yahoo Inc 570 F 3d 1096 1098 9th Cir 2009 100 Id at 1108 101 Id at 1102-1103 26 tion 230 c by labeling as a ‘negligent undertaking’ an action that is quintessentially that of a publisher ”102 Fundamentally net neutrality is about technical network functionality while platform neutrality is about the content that traverses the network The two must be analyzed far differently both under the First Amendment and in practical terms VII A Positive Agenda Areas for Thoughtful Discussion The framework of First Amendment analysis should always inform how lawmakers think about matters of online speech clearly identify a government interest assess what remedies might be narrowly tailored to achieve that interest and ask what less restrictive means might be available to achieve that interest Lawmakers concerned about the potential political bias of social media platforms should keep in mind the following less restrictive means to address the issue   102 Avoid Regulations that Protect Current Platforms The most counter-productive thing lawmakers concerned with the power of existing tech platforms could do is to help entrench their current dominance by imposing vague legal liability that smaller companies are unable to manage That applies not only to “neutrality” regulation but to all regulation Lawmakers considering any Internet law or regulation new or existing should ask themselves “What will this mean for the Next Facebook ” Most fundamentally lawmakers should remember that in the topsy-turvy world of the Internet the most important dimension of competition is not to unseat an existing market leader but to invent an entirely new paradigm for users In other words the real question to be asked is less about who might be the “next Facebook” than what kind of services will seem as important to us in the future as Facebook does today Lawmakers must keep in mind that there will likely be a series of such “dominant” companies just as there has been a series of leading web titans in the past including Prodigy CompuServe AOL GeoCities Yahoo Friendster and MySpace Actively Encourage Competition Data portability is the most commonly cited example of tools that could encourage more competition Facebook Twitter and Google already empower their users to export their data That they did so without any regulatory mandate suggests that market forces are already working to promote user choice Nonetheless the precise details of how such tools work how they could be improved and how widespread they are is a legitimate topic for this Com- Id 27  VIII mittee to study Lawmakers should be careful however to remember the potential costs of data portability every opportunity to remove data is itself a security vulnerability and requires authentication of the user which means collecting more information Transparency Any discussion of governmental mandates should begin by asking to what degree increased transparency could address a perceived market failure Transparency need not be a perfect solution to be preferable to prescriptive regulation Most of the discussion around transparency in platform bias focuses on the nature of the moderation process and the ability to appeal a platform’s decision to take down certain content or accounts Conclusion Content moderation is an inevitable part of the Internet Website operators will always have to make judgments about what content to take down and what to leave up monitor and moderate objectionable content promote effective counter-speech educate their users and generally create healthy positive and dynamic online communities This is itself a kind of innovation — no less important than the technical work of constantly improving the services themselves The moderator’s race to stay ahead of bad actors online or to strike the right balance between free expression and other values will never end There is certainly plenty more that websites in general can do to improve how they moderate content but there’s no one right way to do it across the board and it will evolve with new challenges This is precisely why Section 230 was crafted as it is to avoid having the government try to meddle with “vast democratic forums” of the Internet and remove disincentives against responsible self-policing How Congress handles Section 230 is among TechFreedom’s top priorities We have long said that Section 230 is the law that made today’s Internet possible — and its importance is growing not diminishing as online platforms become more important to our economy society and democracy We would be glad to assist the Committee in its work in this area just as we were happy to assist the Committee with its very thoughtful work in preparing its version of FOSTA 28