Conservatives Should Take Lessons From the Left on Protecting Free Speech

Conservative politicians rage over Big Tech’s use of its monopoly powers and reliance on Section 230 of the Communication Decency Act (“Section 230”) to censor speech on social media. Their rhetoric is full of sound and fury but achieves nothing. Moreover, with significant help from Big Tech, Democrats gained control of Congress and the White House. As a result, Democrats are unlikely to change Section 230 legislatively. To break Big Tech’s stranglehold on free speech on social media, those seeking reform should look to the Left’s brilliant strategy to regulate climate change without passing any new law.

Section 230 grants Big Tech immunity from civil suit when regulating the Internet. Being free of liability has allowed Big Tech to grow in size and wealth while achieving regulatory control over social media and political speech it deems objectionable. Big Tech even banned a sitting President from Facebook and Twitter. In addition, Google and Apple blocked Parler’s App from their stores, and Amazon Web Services suspended Parler’s access to its cloud network, thereby shutting it down until it could find new servers.

As conservative politicians rage at Big Tech, Governor DeSantis (R-FL) proposed and had passed a law prohibiting Big Tech from de-platforming the speech of political candidates and imposed fines on violators as high as $250,000 a day. Florida also allows citizens to sue companies violating the law. However, the penalties will not impact Big Tech’s actions. A few days ago, Google, with a market capitalization over $1 trillion, settled an antitrust case with French authorities for $270 million, a fraction of a percent of its worth. These individual attempts to control the power of Big Tech will be of limited success against the five largest tech giants, having a value of $ 5.2 trillion. The state of Florida’s budget is $101.5 billion. The 2021 combined budgets for all fifty states is $2.1 trillion.

To seriously challenge Big Tech, conservatives will need to develop and implement a coordinated and aggressive strategy that includes legislators, governors, attorneys general, interest groups, legal centers, and citizens who want freedom of speech in the public square.

This strategy has worked. The Left developed, coordinated, and implemented it to impose climate change regulation on the U.S. without Congress ever passing a climate change law. The strategy’s components:

1. Using Administrative Procedure Act laws, file petitions with federal and state agencies to initiate rulemaking to change regulatory policy.
2. If the petitions are denied, a coalition of states, cities, and non-profit organizations will appeal the denial to the courts.
3. Use states as lead petitioners in court challenges to secure special standing recognized by the U.S. Supreme Court.
4. Organize states with similar policy views into regional working units, similar to Compacts, designed to regulate activities of regional concern. For example, nine states in the Northeast and Mid-Atlantic, and three west coast, formed regional compacts to address climate concerns.
5. Encourage state Attorneys General, and coalitions to sue on innovative legal theories. One example would be Big Tech’s potential liability for flagging posts as “misinformation,” which were later found to be credible, and Big Tech retracted its label. Specifically, Facebook’s recent retraction of its ban on posts concerning coronavirus leaks from a Chinese lab. Under Section 230(f)(3), when Facebook labels a third-party’s content “misinformation,” it is acting as an authoritative speaker on its platform by producing, in whole or in part, new content with the third party. Since Section 230 protects platforms, not speakers, Facebook’s speech no longer has immunity from civil liability, and facts supporting its new content may be subject to civil discovery.
6. Environmental groups brought hundreds of NEPA cases to deny permits to oil and gas operations. NEPA lawsuits could also be brought to block permits for Big Tech’s massive energy-consuming data centers.
7. Environmental organizations and state attorneys general brought over One Thousand lawsuits against the government and private parties in the U.S. to impose climate regulation. So perhaps a class action suit against Big Tech is appropriate by those whose comments on the lab leak were flagged as “misinformation.”

If conservatives are serious about reforming Section 230, they have all the tools for success: 27 Republican governors, 25 Republican Attorneys General, and certainly numerous groups that believe in free speech. Recently, 25 red states independently opted out of accepting extra federal unemployment benefits. These actions demonstrate a significant base of potential support.

The key to success rests in the conservative’s willingness to plan, organize and implement like the Left. So far, conservatives have found greater ego satisfaction on conservative cable channels than the difficult task of organizing, implementing, and accomplishing something—like preserving the free speech they constantly tell Americans they want to protect.

Image: Josh Hawley on YouTube