States Shouldn't be Introducing Content Moderation Bills

Four years ago, then-president Donald Trump railed against a little-known law that protects websites from liability for content posted on their websites by third parties. Section 230 of the Communications Decency Act has been a hot-button issue to this day, with Democrats and Republicans alike clamoring for reform. Still, in all that time, nothing has been done. That’s because those on the right and left have vastly different ideas for what reform should look like. The lack of movement has led several states to introduce bills to deal with content moderation on their own. 

That’s a bad idea. Enacting such legislation would be detrimental to users and harmful to small businesses. In addition, it would face all kinds of legal challenges. 

One of the common forces driving legislation in states like Florida, Oklahoma, Louisiana, Minnesota, Tennessee, and others is the notion that conservatives are being censored by big tech companies. The reality couldn't be further from the truth. While conservatives will point to the Hunter Biden fiasco, it won't change the fact conservatives are often the top performers across big tech platforms. They're among the biggest beneficiaries of a free and open internet.

One of the main problems with these bills is how they seek to achieve equality of outcome for internet users. It’s unclear why conservative legislators are trying to reach this goal. Attempting to create policy focusing on outcomes requires lopsided policy measures and still is unlikely to achieve its stated goals. If anything, such legislation runs the risk of resulting in more inequitable outcomes for internet users writ large.  

State legislators seeking to run these bills in the name of promoting free speech, transparency, or consistency in platform moderation simply fail to understand the complexity of the issue. They seem to think these platforms can nerd harder to make the impossible possible. Facebook, YouTube, Twitter, and countless other popular platforms are tasked with reviewing millions of pieces of content every day. Even armed with top-of-the-line artificial intelligence and an army of content moderators, it’s unrealistic to expect these platforms to enforce their terms of use on a fair and consistent basis. The technology is imperfect and humans have preexisting biases. It would be improper to punish tech companies for failing to do something which is presently not possible. 

Another thing these legislators have failed to consider is the negative impact such legislation could have on their entrepreneur and startup communities. Future entrepreneurs and small businesses may be deterred from wanting to enter this space because legislators are sending a clear message that if a business becomes too big and too successful, legislators will punish them with the heavy hand of government. This will discourage innovation and competition and lead to further entrenching the very big tech companies they so often decry. 

Furthermore, enacting this type of legislation on a state-by-state basis runs contrary to the purpose of the internet. Trying to force borders within a mostly borderless internet would lead to a dysfunctional ecosystem where everyone loses out. Problems with experiences on the internet need to be resolved on a federal level because that is the most practical way to do so without breaking it. 

The internet provides an equal opportunity for conservatives to be heard, but private platforms should not be compelled under threat of liability or litigation to host speech they don’t want. Republicans’ blind hatred for tech could upend years of American greatness in technology, innovation, and the great experiment that is the internet. These state bills make no sense to pursue, and legislators should pause before passing out such clearly problematic legislation that leaves everyone worse off. 

James Czerniawski is the Tech and Innovation Policy Analyst at Libertas Institute, a non-profit think tank in Utah. His work has been featured in Morning Consult, The Salt Lake Tribune, RealClearPolitics, and others. Follow him on Twitter @JamesCz19.