When congressional Republicans first accused top tech platforms of suppressing conservative content last April, Silicon Valley could barely conceal their eye rolls. Facebook, Google, and Twitter refused to send representatives to a Republican-led House Judiciary Committee hearing on the issue, leaving pro-Trump YouTube stars Diamond and Silk to take center stage in a meeting that soon descended into farce.
One year later, the tech companies aren’t laughing anymore. On Wednesday, Facebook and Twitter sent representatives to a Senate Judiciary subcommittee hearing convened by Sen. Ted Cruz to strenuously deny that they are stifling speech online. A Google representative was rejected by Cruz for not being higher on the corporate ladder, and the senator promised a separate hearing on Google’s alleged suppression of speech in the near future.
Many in the tech community once saw the outcry over anti-conservative bias as little more than an election-year ploy to fire up frustrated conservative voters. But Cruz’s hearing is the latest in a series of indicators that the issue is thriving well past its anticipated November 2018 expiration date.
“We are seeing a more and more persistent pattern of bias and censorship from big tech,” Cruz said ahead of Wednesday’s hearing. “The big tech companies enjoy a level of power that William Randolph Hearst, at the height of yellow journalism, could only imagine.”
His invocation of the famous publisher is no accident. Along with freshman Sen. Josh Hawley and a growing chorus of House Republicans, Cruz has repeatedly called on Facebook, Google, and Twitter to clarify whether they’re “neutral platforms” where users can post any and all manner of content, or if their allegedly unfair moderation of that content means they’re now “publishers” in their own right.
Conservatives say that distinction is key to the escalating debate around the fate of Silicon Valley’s most treasured provision in the Federal Register, Section 230 of the Communications Decency Act. The law provides legal-liability protections to Facebook, Google, and Twitter for the content posted by users on their platforms, and the companies view those protections as core to their business models.
“If ... the big tech companies wish to be First Amendment speakers espousing their own partisan political view, they have the right to do so,” Cruz told National Journal. “But they have no entitlement to a special, congressionally created immunity from liability.”
Eric Goldman, a professor at the Santa Clara University School of Law, calls the conservative claim that tech companies must be neutral platforms in order to qualify for Section 230 protections “precisely backwards.” Those protections, he said, were put in place primarily to allow companies to moderate content without facing legal liability.
“I believe that Section 230 is being deliberately mischaracterized to score political points among people who don't understand the law, not because the law is unclear or because the critics intend to have a serious debate about its merits,” said Goldman.
But given the bipartisan support to erode Section 230—Congress shot the first hole through the provision with the passage of an anti-sex-trafficking bill last year—there’s more than merely politics in play. On Tuesday, Republican Rep. Tom McClintock told National Journal he’s considering legislation to weaken Section 230, and a bill introduced by GOP Rep. Louie Gohmert in January does just that. With Senate Republicans now poised to make similar moves, Silicon Valley is increasingly nervous that there may be teeth behind the partisan posturing.
“From my own talks with these companies, I think they’re terrified about even having people dip into Section 230 to rewrite at all,” said Dan Gainor, the head of a tech-bias watchdog at the conservative Media Research Center. “I think that’s frankly the only threat that’s happened so far that they seem to care about at all.”
Representatives from Facebook, Twitter, and Google all declined comment on the issue following their Capitol Hill testimonies this week.
Even conservative tech experts are skeptical that the major platforms possess written policies specifically designed to suppress conservative content. But they point to a raft of anecdotal evidence—Twitter’s blocking of Marsha Blackburn’s Senate campaign video, or the banning of right-wing accounts for bullying laid-off journalists with the phrase “learn to code,” along with fierce protests from tech employees over right-wing hires—to claim that conservative speech is under sustained attack.
“You’ve got these byzantine policies,” Gainor said. “They’re created by people who generally are liberal, most of the time without conservatives in the room, and then they’re enforced by people who are overwhelmingly liberal. Is it any surprise that the policies are enforced in disparate ways?”
Corynne McSherry, the legal director at the Electronic Frontier Foundation, said left-wing groups such as Black Lives Matter have also seen their content taken down by the tech platforms, sometimes without an obvious basis. She said that’s due more to the gargantuan task of moderating, via algorithm, millions of pieces of user-generated content each day than to any particular bias. “The mistakes are actually inevitable,” she said.
Conservatives don’t buy it, and are looking for ways to compel the tech companies to, at the very least, turn over more information on their moderation of conservative content.
“Obviously, argument by anecdote is less than satisfying,” said Cruz, who suggested he could soon deploy his congressional authority to force Facebook, Google, and Twitter to turn over the data. Cruz spokeswoman Jessica Skaggs did not respond to multiple requests to explain under what legal framework the senator could compel that data production.
Most experts say the link between Section 230 and the platforms’ speech- and content- moderation policies is tenuous at best. “It’s a non sequitur,” said McSherry. “You’re not going to answer the fake problem of partisan bias with what seems to me a fake solution.”
Yet the argument doesn’t have to make sense to spook Silicon Valley. The threat of gutting Section 230, for any reason, is seen as enough to prompt the tech platforms to take concerns about bias seriously. “It’s a very aggressive approach to try to force these companies to the table,” Gainor said.
Whether the linkage of Section 230 and tech bias exists merely to strike fear in the hearts of the platforms, or if it is likely to produce real legislation, remains an open question. “It’s not a feint,” Hawley said of his push on Section 230 as a remedy for anti-conservative bias, adding that he’s “open to a lot of different proposals.”
But as anger over myriad Silicon Valley policies continues to convulse all parties in Washington, it’s likely that the debate over Section 230, tech antitrust, and other hot-button issues will be affected by Republicans' perception that the online experience is rigged against them.
“I don’t see any legislation moving that is explicitly around, say, anti-conservative bias or a ‘fairness doctrine’ for the internet. That’s never going to happen,” said Zach Graves, head of policy at right-leaning tech group Lincoln Network. “But I think conservatives will be marginally more anti-tech in general, and it’ll affect outcomes in all kinds of different fights.”