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It is not surprising in our cancel culture era that powerful politicians are waging a highly organized campaign to restructure social media companies in their own image, including imposing new restrictions on what can and cannot be posted online. The surprise is that in a national conversation dominated by Black Lives Matter and other social justice warriors, the most vociferous leaders of this movement to control private companies and online speech are conservatives.

On Thursday, the Republicans who control the Senate Commerce Committee subpoenaed the CEOs of Google, Twitter and Facebook to defend their legal immunity to manage content on their sites. Making Silicon Valley kingpins like Jack Dorsey (pictured above) sweat will no doubt give Republicans satisfaction. As a tactical matter, it may make sense to a vulnerable Senate majority to fire a shot across the bow of liberal companies just before an election. But the direction of travel, as the British like to say, is not good.

Out of frustration over apparently unequal treatment of conservative content by Facebook, Twitter and other social media platforms, prominent conservatives are now driving the Trump Justice Department and 50 state and territorial attorneys general to launch antitrust actions with a mind toward breaking up the Big Tech corporations. Many conservatives also back proposals that would effectively remove free speech protections on social media platforms.

Not since former Senate Majority Leader Harry Reid exercised “the nuclear option” that allowed a Republican Senate majority to remake the judiciary in its image has such a political “own goal” been contemplated. Conservatives will surely come to rue the consequences of allowing Justice Department lawyers to restructure the nation’s most vibrant companies, while turning left-leaning trial lawyers into the national enforcers of speech suppression. 

This urge to address online censorship has coalesced around several slippery-slope proposals to limit the liability protections social media companies receive under Section 230 of the Communications Decency Act. A bill filed by Sen. Josh Hawley, a Missouri Republican, seeks to impose a requirement that companies certify their political neutrality in order to receive Section 230 legal protections. Proposals from Attorney General William Barr would protect only “good Samaritans” and not “bad Samaritans” who post illicit content, an idea defensible in principle, but apt to expand in unpredictable ways.

Despite the suggestion of fairness in these conservative proposals, removing protections will have predictably catastrophic effects for online political discourse. Conservatives are understandably outraged by the distortion of government power during the Obama years – from the IRS singling out of conservative groups to the FBI’s reckless Crossfire Hurricane investigation that targeted Trump adviser Carter Page. Yet they now trust that giving government enhanced power to regulate speech will turn out well for them. Why would any conservative trust a future Biden or Harris administration to do a fair job of testing companies’ political neutrality? Or adhering to a commonsense definition of criminal speech?

Before Section 230, online platforms either had to perform the laborious task of individually moderating and approving each piece of content, or not moderate content at all. Congress solved this “moderator’s dilemma” by passing Section 230, which clearly delineates between a platform and a publisher. Under this standard, online platforms are not liable for content their users generate, relieving Facebook and Twitter from having to assess the liability risk of billions of posts. In practice, this has led to the robust proliferation of ideas and opinions that populate your social media feed daily.

By forcing companies to apply every two years for the protections of Section 230, as current proposals would, conservatives would not just hand the power to police online speech to government, but surely lead to a role for the trial bar, the most dependable financial supporters of the Democratic Party and organized left. In this environment, risk averse companies will avoid any remotely controversial content. Any platform brave enough to allow controversy will become the target of these litigious censors on behalf of clients “triggered” by one iconoclastic thought or another.

Conservatives must ask themselves: If you have a beef with Silicon Valley, is it an improvement to allow Silicon Valley to have the final say on what constitutes acceptable and “mainstream”? Diluting the protections of Section 230 will lead to homogenized content – an anodyne, PC-friendly domain of opinions as social media platforms remove any opinions that stray too far from the imposed norm. That is assuming some companies, such as cloud storage providers, simply stop moderation altogether and surrender their platforms to become the worst precincts of Reddit, full of the most hateful elements from society’s fringes. 

Combined with the already trigger-happy mediation of social media companies, this is likely to make conservative discourse online nearly impossible. Which post in our current environment is more likely to receive condemnation as criminal: One justifying protest-related looting? Or one making a connection between some protest organizers and looters? Add in the threat of lawsuits, and censoring conservative viewpoints will become default, even algorithmic.

If conservatives – out of frustration from flagged tweets and a handful of deleted campaign ads – punitively use antitrust law and enact public control of content, it will be marked by historians as the suicide of free speech. If conservatives truly believe in the marketplace of ideas, we need to keep that marketplace as unencumbered as possible. 

Robert H. Bork Jr. is president of The Bork Foundation.

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