Section 230 is just the beginning. Conservatives must understand the stakes are bigger than regulation.
What may have once seemed a fad for Republicans when Missouri’s freshman senator Josh Hawley burst onto the national scene in 2019, decrying Section 230 and “infinite scroll,” now appears—a New York Post “Pearl Harbor attack” and a presidential ban later—to be one of the American right’s great rallying cries. Limited-government champions who came of political maturity during the Gadsden flag-waving Tea Party era, such as Texas’s Sen. Ted Cruz, Colorado’s Rep. Ken Buck, and Florida’s Gov. Ron DeSantis, generate clickable headlines by excoriating the overreaches of Silicon Valley oligarchs. Even many of the most institutionalist Republicans alive recognize the stakes: Just this week, Utah’s former senator Orrin Hatch took to the Newsweek opinion page (which I edit) to accurately lament that “For many Americans, Twitter’s terms of service agreement now has more power over what they can and cannot say in the public square than the First Amendment does.”
It’s past time to revisit Section 230, and more. We need an all-of-the-above political strategy, ranging from Section 230 to antitrust to “common carrier” and “public accommodation” legal status, in order to confront this unique 21st-century threat to the American way of life.
Alas, not everyone on the right is on board. Among the critics of this emergent conservative consensus around wielding political power to constrain Big Tech’s skyrocketing clout would seem to be former Pennsylvania senator Rick Santorum. The once precocious pro-industrial policy, populist-leaning conservative recently took to The American Conservative to oppose Section 230 repeal, and to offer a passionate appeal to “markets, competition, and freedom of expression, even for speech that we disagree with.” My former boss at The Daily Wire, Ben Shapiro, has similarly made consequentialist arguments about how tinkering with Section 230 would actually exacerbate, rather than ameliorate, the status quo of mass suppression of online conservative speech.
It ought to be obvious to everyone with a pair of eyes that the titans of Big Tech—who control the choke points for all online information access, and dictate the ever-changing rules for our digital public square—have eschewed their purported commitment to viewpoint ecumenicism in favor of ideological imperiousness. Even Quillette, a classical liberal stalwart, has endorsed antitrust enforcement to break up these “new railroad barons.” That remedy sounds about right when, as is the case today, Google has an 87.3 percent market share for U.S. search demand, and upward of 90 percent of U.S. internet users access Google-owned YouTube to watch online videos; meanwhile, Facebook commands 62.89 percent market share in the social media space.
Section 230 of the Communications Decency Act was never intended to be nearly as powerful as it has become. As my Internet Accountability Project colleague and “NatCon Squad” podcast co-host Rachel Bovard explained in a December USA Todayop-ed: “The law was enacted nearly 25 years ago as something akin to an exchange: Internet platforms would receive a liability shield so they could voluntarily screen out harmful content accessible to children, and in return they would provide a forum for ‘true diversity of political discourse’ and ‘myriad avenues for intellectual activity.’”
Big Tech has clearly not upheld its end of the Section 230 bargain. Actions such as the collusive joint nuking of upstart social networking site Parler by Google, Apple, and Amazon—to say nothing of the “shadow-banning” or outright blocking of myriad conservative voices from accessing their social media accounts—make this clear. As constitutional scholar Eugene Kontorovich put it in his Senate Judiciary Committee testimony two years ago: “On enacting the [Section 230] immunity provisions, Congress assumed that protected internet services provide ‘a forum for a true diversity of political discourse.’ To the extent that assumption is weakened by online companies filtering out viewpoints that they deem ideologically impermissible, the assumptions behind Section 230 may need to be revisited.”
The situation is compounded by the fact that, in the year 2021, Big Tech is hardly private in any meaningful sense of the term. Rather, Big Tech is now best understood as a quasi-state-run appendage of the American ruling class, assisting the ruling class in its exercise of regime-level political power to reward its friends and punish its foes. Businesses now operate in a perverse clime of dilapidated pseudo-capitalism, and Big Tech political nepotism almost presents an example of Deng Xiaoping-style “socialism with Chinese characteristics.” To call this state of affairs dispiriting would be an understatement: We are through the looking-glass.
In truth, Big Tech is just the most egregious example of a larger trend. Conservatives increasingly grasp that Big Business, in general, is decidedly not our friend. There is nothing particularly conservative whatsoever about policies that abet the accumulation of unaccountable, unprecedented corporate power—not least when those engorged corporations’ C-suite fat cats revile us and everything we stand for. Conservatives must become comfortable exercising any, and every, tool in our collective arsenal—including, at the federal level, not merely Section 230 reform and antitrust enforcement, but also the application of “common carrier” and “public accommodation” legal paradigms—to reclaim our democracy from the woke oligopolists, technocrats, and machines. When the price of inaction is self-inflicted consignment to eternal political irrelevance, we need an all-of-the-above strategy, all hands on deck.
My own interest in the Big Tech debate is colored by my belief that it represents the perfect proxy for the fight over what conservatism is and what it ought to be, as we move beyond the Trump era. To wit: Was this all just an aberrant flash in the pan, never again to be imitated or duplicated, or was it a harbinger of what is to come on the American right? Will conservatism regress to being the movement and party of lax borders and laissez-faire fundamentalism, or will it reclaim the mantle of justice, the nation-state, and the common good? The obstinate “build your own Google!” smart set are eager for regress, while the more prudential and pragmatic among us must work for that latter cause. They may be preoccupied with a never-granted moral high ground of “principled” means, willing to lose again and again, but we must be concerned above all else with pursuing the substantive ends of politics and fighting to win.
The intra-conservative battle lines, then, are largely set. Sadly, only one side of this intellectual tussle intuits that this is not merely an issue of ordinary politics, but one upon which our survival as a free people necessarily depends. Good luck, then, to all battle participants, but perhaps better luck to the side that grasps the relevant stakes.
Josh Hammer is opinion editor of Newsweek, a research fellow with the Edmund Burke Foundation, and counsel and policy advisor with the Internet Accountability Project. Twitter: @josh_hammer.
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