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GOP memo on Big Tech shows lawmakers ready to ‘burn down the internet,’ legal expert warns

A new proposal by Republican lawmakers to overhaul a critical law that protects online platforms already looks dead in the water, according to one legal expert, though another prominent legal scholar believes it could fuel bipartisan reform for tech regulation.

The proposal, laid out by Republican members of the House Energy and Commerce Committee on Thursday, is meant to serve as a foundation to reform Section 230 of the Communications Decency Act, a law that provides liability protection for websites that host and moderate third-party content — including tech giants like Facebook (FB), Google (GOOG, GOOGL), and Twitter (TWTR).

One legal expert says it creates more problems than it solves, though.

“To me it's a chilling memo, because it shows that both the Democrats and Republicans are ready to burn down the internet, and they can find plenty of reason to agree on that,” Santa Clara University School of Law professor and associate dean for research, Eric Goldman, told Yahoo Finance.

“Whoever drafted that memo, does not care about making good policy,” Goldman, added.

Section 230 has become a lightning rod on both sides of the aisle, with critics saying the 25-year-old law needs to be updated. Still, the law’s critics attack it for different reasons, with some Democrats arguing that Section 230 allows tech giants to host dangerous misinformation while some conservatives contend the law allows conservative voices to be censored.

The Republican members’ proposal submitted Thursday calls for, among other things, modifying 230 to strip liability protection for Big Tech if their content moderation practices discriminate against political affiliations or viewpoints, a frequent conservative talking point.

‘A First Amendment problem’

Legal scholars, however, say that tech companies have a right under the First Amendment to moderate content on their site as they see fit.

“There's a First Amendment problem here with some of this stuff, and that's sort of the big issue looking at a lot of these concepts,” India McKinney director of federal affairs at the Electronic Frontier Foundation, told Yahoo Finance.

An art installation protest by the organization SumOfUs portrays Facebook CEO Mark Zuckerberg as a January 6th rioter on the National Mall near the U.S. Capitol in Washington, U.S. March 25, 2021.  REUTERS/Jonathan Ernst     TPX IMAGES OF THE DAY
An art installation protest by the organization SumOfUs portrays Facebook CEO Mark Zuckerberg as a January 6th rioter on the National Mall near the U.S. Capitol in Washington, U.S. March 25, 2021. REUTERS/Jonathan Ernst TPX IMAGES OF THE DAY

Yet another part of the proposal would treat Big Tech services as if they were state actors, limiting liability protections to moderation of speech not protected by the First Amendment (such as fighting words, obscenity, child pornography, libel and slander, threats, and copyright violations). Such a rule could obligate or heavily pressure companies to publish all other user-generated speech, regardless of its nature. That type of requirement by the government for a private entity to speak, Goldman said, amounts to censorship.

“The only way you get there is if you ignore editorial privileges that internet services have. There’s an entire First Amendment provision about the freedom of the press,” Goldman said.

The Republican committee members also propose scaling back Big Tech’s First Amendment protections by categorizing their services as “places of public accommodation,” a designation traditionally used for physical businesses open to the public. Under the designation, the lawmakers said, companies could be offered liability protection only for content moderation processes that can be challenged by users, in court.

“The entire notion of saying, ‘We're going to treat a publisher like a restaurant’ is so incoherent,” Goldman said. “It doesn't make any sense. They're not serving customers, they're not kicking people out.”

Open season on the internet?

Signed into law in 1996 when online communication forums were in their infancy, Section 230 was created to enable platforms to make “good faith” efforts to moderate “objectionable” content, without facing legal liability over that content. In turn, online companies could remove problematic content from their sites, without being treated as though they made the actual statements, or made editorial decisions akin to a media publication.

But the vagueness of the terms “good faith” and “objectionable” have translated into websites — and of particular concern, social media and other websites — enjoying virtually unlimited power to remove, obscure, and place warnings on user-generated content. At the same time, the law does not hold tech companies accountable for the content they fail to remove (with the exception of content related to sex trafficking).

While the Constitution’s First Amendment protects the speech of these private companies, Republican lawmakers blame Section 230 for allowing Big Tech companies to moderate content too aggressively — and Democratic lawmakers say it promotes the companies not being aggressive enough.

Regardless of any differing impetus for reform, Goldman sees the Republicans’ memo as a signal to the rest of Congress that it's “open season” on the internet. McKinney, on the other hand, views the proposals as a wish list that has a long way to go from policy position to legislative text, especially for a party holding a minority in both Congressional chambers.

Alexis Keenan is a legal reporter for Yahoo Finance and former litigation attorney. Follow Alexis Keenan on Twitter @alexiskweed.

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