The “Executive Order on Preventing Online Censorship” directs the Federal Communications Commission to narrow the scope of Section 230 of the Communications Decency Act, which largely protects internet companies from liability for content posted by users on their platforms. The order is not only ill-considered — it is unconstitutional. It mocks the First Amendment by seeking to dictate speech to private actors. It ignores the fact that, in our system, laws are determined by Congress and the Constitution – not by executive decree.
Moreover, this order will unfairly burden innovators and reduce our international competitiveness.
We support legitimate efforts to protect and enhance free speech. But this executive order will restrict — not promote — free expression. It is an attempt by the government to regulate social media and other tech platforms to benefit a political agenda.
For the past few months, people across the nation — and around the world — have relied on online platforms to connect and communicate. But as the economy begins to reopen, suddenly free speech is under attack — again. Yet it was Section 230 and the free speech protections enjoyed by online platforms that enabled their success and, subsequently, their ability to support struggling Americans during the pandemic. Facebook, Instagram, Twitter, and YouTube — the very companies the president calls out in his order — are not only hubs of critical information about the virus; they have invested over a billion dollars in supporting the news industry, small businesses, and COVID-relief charities.
Ironically, though, small businesses would be hit the hardest by a repeal. Section 230 protects platforms from a barrage of nuisance lawsuits for hosting third party speech, such as bad restaurant reviews, postings on community bulletin boards, or remarks in an online comments section. These smaller companies and startups will fold without the resources to fight these wasteful lawsuits. Any site hosting user-generated content would have to screen every single submission to avoid litigation — directing resources toward regulation instead of innovation. In other words, the biggest burden created by removing Section 230 would fall on entrepreneurs, startups, and those without huge legal budgets.
This goes against everything America stands for.
Right now, America’s internet companies — the crown jewels of our economy — lead the world in digital technology. But this will not be the case for long if Section 230 protections are weakened or removed. Our nation’s pro-free speech, light-touch regulation is the basis for our country’s thriving online economy. It’s what makes America’s tech businesses the most successful in the world.
If companies have to shift their focus from innovation to fighting lawsuits, it will hinder the development of new technology and ideas, like the ones that saved countless American lives over the past few months. The likely winner here (in addition to trial lawyers) will be China, which is spending billions in a frenetic attempt to catch up to American innovators, even as our companies are being attacked by their own government.
Section 230 protects the ability of the American public to freely exchange ideas with each other and the world. It supports the common-sense idea that responsibility for online speech lies with the speaker and ensures that internet platforms can remove offensive or inappropriate speech without fear of liability.
In the American system, the role of government is to draw the boundary lines without violating First Amendment speech restrictions, allowing new businesses to start, and encouraging the free flow of ideas.
If we allow this basic underpinning of the American system to be eroded, what comes next?
Instead of promoting unconstitutional orders, the federal government should take a narrow approach that directly targets bad actors. Instead of punishing law-abiding small businesses, efforts should be directed at the limited number of rogue websites that are actually violating the law.
This is the American way — unconstitutional and politically-motivated policies are not.
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