These events confirmed what many of us have long known: true political power no longer resides in Washington, but in Silicon Valley. Big Tech now effectively decides who has the right to speak, who has the right to assemble online and who has the ability to build a business in the digital age. 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.
As David Sacks rightly observed, social media companies have privatized our free speech rights. Through a combination of surveillance, speech policing and economic censorship, private companies are undermining the virtues of a free and open internet and relegating many Americans to second-class status. A dark future awaits if government fails to rein in these monopolies.
The pattern of “canceling” individuals for social media posts is well established. This can result in deplatforming, termination of employment or—if you’re baseball legend Curt Schilling—even losing your health insurance. We’re used to seeing cancel culture on a micro-scale: a newspaper editor being fired here, a university professor being suspended there. But now, thanks to an assist from Big Tech, we’re seeing cancel culture on a much broader level. Take the mass cancelation of Parler’s more than 10 million users, or growing calls to ban Fox News, Newsmax and other right-leaning channels altogether. If successful, these efforts will shrink the window of acceptable viewpoints in American society until conservatives find themselves on the outside.
The irony is that American taxpayers—conservative and progressive alike—are subsidizing this effort.
Prior efforts to create a digital (or internet) bill of rights have focused on protecting personal data and privacy. Although such safeguards are essential, they are not enough. Just like the Constitution’s Bill of Rights, a truly comprehensive digital bill of rights must protect not only privacy, but also the right to speak and to assemble. Social media platforms are the 21st-century equivalent of the public square, and therein lies the challenge. Private actors are deciding which views are permissible in the public discourse through their terms of service—and Section 230 lets them do so in any way they want. The solution, however, is not to rewrite Section 230 in a way that would drive these companies out of business. Rather, it’s to eliminate their power to engage in arbitrary censorship. How can this be achieved? By requiring these companies to tie their content moderation policies directly to the First Amendment.
History has proven the First Amendment to be the most effective standard for setting the boundaries of protected speech. The First Amendment fosters robust discussion and a diversity of viewpoints while permitting restrictions on a handful of limited, carefully defined categories of harmful speech, such as fraud, defamation, child pornography and incitement to violence. What it doesn’t permit are prohibitions on conservative viewpoints, negative news stories about President Biden’s family or opinions that tech oligarchs might not like. And that’s exactly why it should be the standard for social media companies providing a forum for public discourse and the companies owning the servers that host such forums.
If these companies want to base their business models on providing digital access to the public square, then they should have to abide by the well-established standards regulating free speech in the public square. Insofar as they conform to First Amendment standards in their terms of service, these companies should continue to enjoy immunity from civil liability under a revised section 230. But if they want to go beyond the First Amendment and prohibit forms of speech protected by the First Amendment, they should be liable just like any publisher who engages in content moderation (which is really content discrimination).
Big Tech has privatized many of our most fundamental freedoms, including freedom of speech and freedom of assembly. But by following this simple blueprint, we can safeguard those freedoms now and in the future and usher in a new era of prosperity and innovation.
Orrin G. Hatch is chairman emeritus of the Orrin G. Hatch Foundation and the former chairman of the Senate Judiciary Committee. A Utah Republican, he served in the U.S. Senate, 1977-2019.
The views expressed in this article are the writer’s own.
