Big Tech Is Playing With Fire -- Young Tech Entrepreneurs Seem to Have Short Political Memories

(AP Photo/Matt Rourke)

I’m 100% confident comments to this article, and reactions on Twitter and Parler will include a ton of “It’ll never matter because elections are all rigged now and the Dems will always win”.

If that is your default mode, then I suggest you move to Mexico, and experience how votes are counted in elections there.

But I have a long political memory because I’ve followed politics going back to my high school years — a long time ago.

Here is what I remember:

The Democrat candidate for President carried 28 of 50 states — 365 electoral votes — winning the national popular vote by just a little less than 8%.

The Democrats in the Senate added 8 seats to their majority — building on the 5 seat gain from two years earlier.  They had 57 seats total, aided by 2 Independents who caucused with them, for a total of 59 votes.

The Democrats in the House added 21 seats to their majority, which combined with the 31 seats they added two years earlier — giving them the majority in the House — meant they had a 257-178 advantage in the House.

In the next election cycle — two years later — the Democrats lost 6 seats in the Senate, taking them down to 53 in the caucus.  They also lost 63 seats in the House, returning them to the Minority.  The aggregate popular vote in the Congressional Districts had the Republicans winning 52-45%.

That was 2008-2010.

Today the Democrats have probably the weakest incoming President in … maybe forever (Jimmy Carter?), the Senate is evenly divided 50-50, and the Democrats just lost 10 seats in the House while winning the Presidency, with the GOP House candidates running 3% better in the popular vote than they did in 2018.

And this is the party that the Big Tech companies think will protect them WHEN the GOP regains power in Washington???

It would be easy to fall back on the idea that Big Tech, through political contributions, has “purchased” enough support from some in the GOP that when combined with Democrat support they will be able to head off any legislative or regulatory challenges.

I believe that calculation can no longer be relied upon.  Big Tech has not just taken up the political views of Democrats, Big Tech has now used its market dominance in social media in a move to silence political opposition from a large segment of the GOP needed by GOP legislators to get elected.

That’s an existential threat to GOP elected representatives that has likely earned a legislative response — which they might be able to avoid as long as a Democrat is in the White House to veto such legislation.  But a unified GOP Congress — maybe as soon as 24 months from now — could make life very difficult for a Democrat White House by attaching some form of  Big Tech regulation as a part of some “must-pass” legislation.

But maybe, more importantly, Big Tech might have finally earned a concerted effort to challenge their conduct in court.

It is a bit of an esoteric legal issue, so it is not surprising that many misunderstand or have their eyes glaze over when issues involving “Section 230” get mentioned. In 1996 there was no “Facebook” or “Twitter”, to use the two most well-known platforms of social media.  When Section 230 was passed, it was intended to afford protection from serial defamation suits against Internet Service Providers by third parties aggrieved by content published by such services — mostly early search engines like Yahoo which did not “screen” search results for defamatory information.  Web hosting of individual blog-type web pages wasn’t even a “thing” yet.

For purposes of legal liability, traditional defamation laws distinguish between publishers/speakers of “speech”, and other parts of the distribution chain of such “speech” like newsstands and bookstores.  Publishers and speakers exercised editorial control over content, whereas the downstream participants in the distribution could only choose whether to sell or not sell the content.  Section 230 was intended to expand that dichotomy to online content, and “interactive computer services” were to have the same status as newsstands and bookstores because their only option was to transmit or not transmit the content.

The relevant operative provisions of Sec. 230 grant immunity from suit to such interactive computer service providers in only 2 circumstances — when the company’s only role is hosting or distributing the content, and in instances where the company takes down or bans objectionable conduct when acting in good faith.

The key to understanding the controversy is to understand the implications of this provision being applied as “immunity.”  In practice, that means anyone who sues a Big Tech company over content will never get past the pleading stage because Big Tech has “immunity.”   The companies file motions to dismiss claiming their actions fall under the protection of Sec. 230.  They claim that they are either just providing distribution of the content of others — and are therefore immune like a newsstand — or they have acted in good faith in taking down or barring the content of others.

The burden is on a plaintiff to show — with evidence — that those claims are not true. If they cannot, the “immunity” provided by the statute results in the dismissal of the case, and the companies are never required to defend their decisions.

It is from that position of comfort that Big Tech can make decisions like the one they made in the last 48 hours to act in ways intended to shift the dynamic of political discourse by making their platforms unavailable to political content they don’t agree with.

There is a side of this argument that says private companies — even Big Tech — are entitled to manage their product in any way they see fit as part of their company vision.  Such a view is consistent with the free enterprise system which lets the “marketplace” reward and punish through the choices of consumers and users.  I believe in a pluralistic society of over 330 million people, the marketplace is capable of punishing such unacceptable conduct.  But the manner in which Section 230 has been applied by Courts over the past 25 years has nearly eliminated the marketplace as a “regulating” entity.

As Justice Thomas noted in a Statement filed in connection with the denial of a petition for certiorari in October 2020 on a case involving the application of Section 230, lower federal courts have used the passage of Section 230 to fashion “policy and purpose” justifications in expanding the “immunity” of Section 230 to situations never contemplated by Congress.

Justice Thomas noted that in the 25 years since the passage of Sec. 230, the Supreme Court has never taken up a case to review an appeals court’s interpretation that extended the immunity protections.

What Big Tech should fear is not necessarily a move by Congress or the courts to create grounds for liability that don’t already exist, but rather a much simpler step making clear that “immunity” from suit doesn’t extend as afar as the courts have stretched the application of Section 230.

That would require that Big Tech defend itself and its actions under circumstances where the adverse party will have access through discovery to internal communications and documents that might not be consistent with the public statements made by Big Tech in defense of itself.

GOP elected officials have now faced the reality that Big Tech wants the GOP to cease being an effective political opposition.  Big Tech actively suppressed true and significant facts in the NY Post story on Hunter Biden, and at the same time willingly hosted and promoted fascist rhetoric and calls to violence by groups like BLM and Antifa with no content controls  It is unequivocally a threat to the GOP as a political opposition to the Democrats which Big Tech supports.

Barack Obama needed the cover of darkness, a weekend, and a congressional procedural maneuver using a budget reconciliation bill to pass Obamacare on a party-line vote when he had 59 Senators and a 79 seat majority in the House.

Big Tech is now in the position of relying on the Democrats in Congress for protection when they have a 50 senators and a 10 seat majority in the House, all while staring at a mid-term election which history says will be won by GOP candidates in greater numbers than the outcome two months ago.

All of that may not matter ultimately, as the Supreme Court could get there first.