Debate: Can The First Amendment Rein In Big Tech’s Censorship?

Leading tech and free speech experts argued Thursday about the limits of Big Tech moderation policies during a debate hosted by the Daily Caller News Foundation.

Josh Hammer, an opinion editor at Newsweek and counsel at the Internet Accountability Project, squared off against Niam Yaraghi, a senior fellow for governance studies at the Brookings Institution’s Center for Technology Innovation, over the federal government’s role in preventing online censorship of certain viewpoints during the DCNF debate at The Heritage Foundation. Hammer argued that the federal government and Big Tech — including Facebook, Google and Twitter — have become too closely intertwined, while Yaraghi said the First Amendment doesn’t guarantee a blanket right for Americans to say whatever they want on private platforms.

“The amount of content that is published on Twitter in 24 hours is equivalent to the amount of content that is published by The New York Times in 182 years,” Yaraghi remarked. “How are you going to have editorial power over it? You can’t. The moment that we take immunity from them, you open the floodgates of lawsuits — it would be really good news for lawyers, but it will be the end of Big Tech in the United States.”

“How difficult it would be from a legal standpoint, to argue that Google also should — if I’m exchanging emails that would lead to some terrorist activity, isn’t it then in the interest of Google, and all these other communications platforms, to have even more knowledge of my private communications?” he continued. “Wouldn’t that undermine my Fifth Amendment rights, my rights to privacy?”

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Yaraghi added that Section 230 of the 1996 Communications Decency Act was put in place to allow internet platforms to grow and thrive without being bogged down by editorial standards applied to news outlets. If similar standards were applied to Big Tech platforms, it would be impossible for them to moderate all content, he argued.

Section 230 ensures that Big Tech platforms aren’t held responsible for their users’ speech.

Although Hammer didn’t directly push back against Yaraghi’s arguments, he expressed concern about how Section 230 has been interpreted and how Big Tech has appeared to do the bidding of the federal government in censorship matters.

“Because of the way section 230, the so-called Good Samaritan provision … has been interpreted to give such large swathes of discretion to the Big Tech elites — to the oligarchs — that has created a constitutional problem,” Hammer stated.

“[The federal government] cannot immunize purportedly private actors to do that which the government otherwise could not directly do,” he said.

Paul Larkin, the Rumpel Senior Legal Research Fellow at The Heritage Foundation’s Center for Legal and Judicial Studies, moderated the debate.