Most observers expect the Republicans to take control of the House of Representatives, and possibly the Senate, in the upcoming midterm elections.  While both Democrats and Republicans are likely to keep their attention on the actions of so-called “Big Tech,” this political shift should bring a renewed focus on amending Section 230 of the Communications Decency Act.  Section 230, which provides platforms with immunity from liability for third-party content and content-moderation decisions, has been a target for lawmakers seeking to limit the power of large technology companies.  Republicans have generally focused more on modifying Section 230, versus Democrats, who have spent more energy on using antitrust legislation to regulate those platforms.

Looking ahead, now is the time to consider policies and plans in light of a Republican-controlled Congress taking on potentially divisive issues through the lens of Section 230.

Republicans, Conservatives, and Section 230

Two trends will guide Republicans’ approach to Section 230 in the next Congress.  First, as in many areas, Republicans will seek to address what they see as “woke capitalism.”  New York Times columnist Ross Douthat coined the term in 2018 and defined it as a “certain kind of virtue-signaling on progressive social causes, a certain degree of performative wokeness, [that] is offered to liberalism and the activist left pre-emptively, in hopes that having corporate America take their side in the culture wars will blunt efforts to tax or regulate our new monopolies too heavily.”

Republicans are already planning a variety of legislative and oversight maneuvers meant to address corporations taking certain positions on cultural issues.  Technology companies may very well be at the top of Republicans’ list.

Second, conservatives increasingly view liberals as having abandoned their commitment to free speech.  For example, Republicans view the Hunter Biden laptop controversy, campus speech codes, and social media content moderation as part of a broader effort to silence and marginalize conservatives.  Simply put, conservatives believe that they are now the defenders of free speech.

Emphasizing the Constitutional dimensions of this debate, U.S. Circuit Judge James Ho, a high-profile and outspoken Trump appointee, recently gave a speech at the Georgetown University Law Center where he discussed the recent controversy over the university’s hiring of a conservative scholar.  As part of that speech, the judge remarked:

But freedom of speech is much more than just a constitutional principle.  It’s also a cultural principle.  And even more than that, it’s the foundation of our entire adversarial system of justice. . . . And that system is premised on the principle that, in any dispute, both sides deserve zealous legal representation.  Because that is the best way to ensure the truth will [win] out.

Judge Ho went on to offer that “cancel culture is not just antithetical to our constitutional culture and our American culture” it is also “completely antithetical” to our legal system.  This belief—and the view that powerful technology platforms discriminate against conservative speech, however defined—will likely drive Republicans to take aim at the broad content-moderation immunity in Section 230.  In other words, while the immunity provided by Section 230 for third-party content is not as obviously related to concerns about censorship, those protections may still come under attack and be used as a tool to weaken the power of platforms.

What’s Next

Congressional Republicans have generally sought to modify Section 230 in two main forms: (1) legislation addressing the mechanics of Section 230’s content-moderation protections; and (2) legislation targeting specific exemptions from Section 230 protections for third-party content.  Republicans will likely take similar approaches next Congress, both in targeted bills and in any broader technology legislation.

A key example of the likely Republican approach to content-moderation mechanics is the Online Content and Policy Modernization Act (S. 4632, 116th Congress).  Introduced during the height of the debate about platforms restricting discussions of COVID-19 and election interference, Senator Lindsey Graham’s (R-SC) legislation would have removed Section 230 immunity when platforms restricted information or edited or modified certain posts.  Specifically, the bill would have gotten rid of Section 230 protections for “any decision or agreement made or action taken by a provider or user of an interactive computer service to restrict access to or availability of material provided by another information content provider.”  Similarly, the bill would have eliminated immunity for “instances in which a person or entity editorializes or affirmatively and substantively modifies the content of another person or entity.”  For example, some platforms had included disclaimers on certain posts that shared possible disinformation about the pandemic, and this bill would have removed Section 230 protection in those instances.  While that bill never progressed out of the Senate Judiciary Committee during the 116th Congress, it is a good model of what sort of legislation Republicans could pursue if they want to address the mechanics of Section 230 next Congress.

Turning to specific exemptions, House Republicans led by Rep. Cathy McMorris Rogers (R-WA) have already released a Big Tech Accountability Platform and have since noted some specific actions they want take on Section 230 reform.  Those actions include Section 230 carve-outs targeted at the Chinese Communist Party, cyberbullying, doxxing, terrorism, child exploitation, counterfeit products, and illegal drugs.

From a political standpoint, these potential Republican proposals will force Democrats to choose between preserving Section 230 as it exists today, which many (but not all) Democrats support, and issues like combatting child exploitation, which is also a priority.  Notably, another consideration for Democrats in this space is that civil rights groups largely oppose changes to Section 230, as was seen during the debates over SESTA/FOSTA, which ultimately passed the House by a vote of 388–25 and the Senate by a vote of 97–2, and the EARN IT Act, which separately deal with carve outs for trafficking and child exploitation offenses.

Taking Action Now

The likelihood of divided government means that the chances for successful legislative action on Section 230 will remain low.  Nonetheless, a precipitating event could cause Congress to move hastily and likely without much deliberate consideration.  At the same time, continued activity in Europe through legislation like the Digital Markets Act and the Digital Services Act will create pressure for the U.S. government to take similar moves to regulate the technology sector.  With those developments in mind, what is more likely next Congress is that activities by the Biden Administration, including the Department of Justice and the Federal Trade Commission, will provide further pressure for Congress to hold hearings on these issues in addition to probable Republican objectives.

Nicholas Xenakis

Nick Xenakis draws on his Capitol Hill experience to provide regulatory and legislative advice to clients in a range of industries, including technology. He has particular expertise in matters involving the Judiciary Committees, such as intellectual property, antitrust, national security, immigration, and criminal…

Nick Xenakis draws on his Capitol Hill experience to provide regulatory and legislative advice to clients in a range of industries, including technology. He has particular expertise in matters involving the Judiciary Committees, such as intellectual property, antitrust, national security, immigration, and criminal justice.

Nick joined the firm’s Public Policy practice after serving most recently as Chief Counsel for Senator Dianne Feinstein (C-DA) and Staff Director of the Senate Judiciary Committee’s Human Rights and the Law Subcommittee, where he was responsible for managing the subcommittee and Senator Feinstein’s Judiciary staff. He also advised the Senator on all nominations, legislation, and oversight matters before the committee.

Previously, Nick was the General Counsel for the Senate Judiciary Committee, where he managed committee staff and directed legislative and policy efforts on all issues in the Committee’s jurisdiction. He also participated in key judicial and Cabinet confirmations, including of an Attorney General and two Supreme Court Justices. Nick was also responsible for managing a broad range of committee equities in larger legislation, including appropriations, COVID-relief packages, and the National Defense Authorization Act.

Before his time on Capitol Hill, Nick served as an attorney with the Federal Public Defender’s Office for the Eastern District of Virginia. There he represented indigent clients charged with misdemeanor, felony, and capital offenses in federal court throughout all stages of litigation, including trial and appeal. He also coordinated district-wide habeas litigation following the Supreme Court’s decision in Johnson v. United States (invalidating the residual clause of the Armed Career Criminal Act).