Former Federal Communications Commission (FCC) Wireless Bureau Chief Fred Campbell told Breitbart News in an exclusive interview Tuesday that America’s largest technology companies have “abused” Section 230 of the Communications Decency Act to censor conservatives.
Sens. Ted Cruz (R-TX), Josh Hawley (R-MO), and other conservatives have often contended that the “predicate” for enacting Section 230 of the Communications Decency Act, which gave social media companies wide legal latitude to censor conservatives, was that they would act as “neutral public fora” and allow for political discourse to flourish on their platforms.
Both Silicon Valley and affiliated tech policy think tanks have suggested that social media platforms do not have to act as “neutral public platforms.”
For instance, the controversial and antiwhite New York Times editor Sarah Jeong wrote an op-ed in July, citing Google-funded expert Berin Szoka. In Jeong’s op-ed, she and Szoka claimed that social media companies such as Facebook, Google, and Twitter have no legal obligation to serve as neutral platforms and they can discriminate against political views, including conservative viewpoints.
“Political neutrality has never been part of C.D.A. 230, and to make it so would require a complete overhaul of the law,” Jeong contended.
However, conservatives and experts contend these social media platforms continue to act as publishers, which violates the understanding that the companies would allow political speech to flourish on their platforms in exchange for their Section 230 legal immunity.
A spokesperson for Sen. Cruz told Breitbart News in a statement, “Big Tech enjoys a subsidy that no other industry does: immunity from liability under Section 230 of the Communications Decency Act. That immunity is predicated on the expectation that social media would be neutral public forums. Big Tech has made it abundantly clear they have no intention of abiding by that, taking the opposite tact by operating as partisan publishers. Sen. Cruz believes if they’re going to choose to be partisan publishers, then there is little reason why they should get a special immunity from liability that other publishers, such as the New York Times, don’t enjoy.”
Sen. Ron Wyden (D-OR) and then-Rep. Chris Cox (R-CA) drafted Section 230 of the Communications Decency Act to override a New York Supreme Court case known as Stratton Oakmont, Inc. v. Prodigy Services Co. which held Prodigy liable for reportedly defamatory information against Stratton Oakmont. The court ruled that Prodigy was a “publisher” and therefore liable for content posted on its website.
Section 230 overrode this standard and granted Internet platforms more legal immunity from hosting offensive content on their platforms by stating:
The term ‘information content provider‘ [ICS] means any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.
The section exempts ICS’s, or Internet platforms, from civil liability if they are restricting “offensive content” in “good faith.”
Campbell, who served as chief of the Wireless Telecommunications Bureau as a wireless legal adviser to then-FCC chairman Kevin Martin, told Breitbart News that some social media companies have abused Section 230’s legal immunity in ways that Congress never intended.
Campbell said, “I think it [Section 230] has been abused by some of these companies that weren’t really contemplated by Congress. It goes far beyond just overruling” the Prodigy case.
When Congress started drafting Section 230, it intended to help ensure that political speech would flourish after Internet platforms were given broader legal immunity.
In Section 230’s congressional findings, Congress found that the Internet should “offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.”
Congressional findings do not operate as binding law, although, as the House’s legislative counsel explains, these findings serve as a statement in “clarifying Congress’s intent behind the provision.”
Sen. Hawley cited this congressional finding, charging that, when Congress was about to pass the Communications Decency Act, they intended the Internet to become a “forum for free expression.” Hawley told Wired in an interview in August:
If you look at the congressional findings from when Section 230 was originally passed, one of the things that Congress notes in the findings is that the internet—now keep in mind this was the mid-1990s now, so this was all very, very early—but they said the internet is going to be a forum for a diversity of political viewpoints and a forum for cultural viewpoints and a forum for free expression. And that was the assumption, and that was the hope.
And the companies now have used the Section 230 shield to begin exercising editorial judgments.
To end social media companies’ censorship of conservative and alternative viewpoints on the Internet, Sen. Hawley, Rep. Paul Gosar (R-AZ), and other lawmakers have proposed legislation that would prevent these platforms from censoring conservative speech on the Internet. However, passing legislation that could pass both houses of Congress remains a daunting task for many conservatives.
Campbell told Breitbart News that there remain other options that could help end social media companies’ censorship of conservatives. He said that many terms in Section 230 remain broadly interpreted.
Campbell said that Section 230 does not define the terms “responsible” or “development” which leaves the specifics up to the courts or the FCC, which could adopt rules interpreting Section 230. Defining these terms could help clarify to what degree Internet platforms become liable when they curate content that is not widely considered “offensive.”
So far, the FCC has refrained from touching the issue of addressing social media censorship; however, FCC Chairman Ajit Pai has questioned whether the country needs to think “seriously” about whether social media giants need to abide by “new transparency” requirements regarding censorship and privacy.
The former FCC bureau chief said that if a social media company were to act in “bad faith” to restrict or censor content that is not considered offensive, it would remove the Section 230 legal immunity and thus open a social media company up to litigation.
Campell asked rhetorically, “Does an ICS operator become an information content provider generally—i.e., is it responsible for developing all information on its site—when the ICS acts in bad faith to restrict content that isn’t offensive? Restricting non-offensive content the ICS operator doesn’t like has the effect of making viewpoints the ICS operator does like more ‘visible’ and ‘usable,’ which, according to the dictionary definition of “develop,” makes the ICS operator play a part in developing the content it favors.”
“If they’re potentially exposed to liability they will have to be more careful,” Campbell said of social media companies regarding their content moderation practices.
Campbell also said that potentially opening up Google, Facebook, and Twitter up to litigation “is not really a restriction on their curation capabilities, it’s just removing a liability.”
He added that this could serve as a “fair interpretation of Section 230 that would help address anti-conservative bias in social media.”