Let's Not Emulate the British With Limits On Internet Free Speech

After years of back and forth negotiations and multiple elections, the United Kingdom finally left the European Union last month.  On the eve of Brexit, Prime Minister Boris Johnson addressed the nation:

This is the moment when the dawn breaks and the curtain goes up on a new act in our great national drama.  And yes, it is partly about using these new powers—this recaptured sovereignty—to deliver the changes people voted for.

Yet, as the saying goes, the more things change, the more they stay the same.  Recently, the U.K. government announcedit was putting its telecoms regulator, Ofcom, in charge of policing so-called “harmful” online speech to “make the [I]nternet a safer place.”  To achieve this, the government wants Ofcom to enforce a “duty of care” on platforms like Facebook and YouTube “to keep people using their platforms safe.”  The government portrays this mandate positively, claiming that the authority given to Ofcom will be “flexible and can adapt to the rapid emergence of new harms and technologies.”  But the dangers of roving regulatory mandates are enormous in the technology sector.

The U.K. may very well have good intentions.  In support of this regulatory move, U.K. officials chiefly cite concerns about online child exploitation, self-harm, and the dissemination of terrorist propaganda.  

But of course, consequences, not intentions, matter.  The introduction of a vague “duty of care” for platforms owners will inevitably curtail users’ speech on those platforms.  Faced with a choice between potentially incurring billions in rent-seeking government fines or removing the occasional user’s post, the rational choice for platform owners is obvious.  Worse yet, a “duty of care” can easily become the pretext for political or other forms of censorship.  Under a “duty of care,” online platforms have a lawful opportunity to exclude views the platform owners do not share.

And as our experience here in the U.S. shows, government need not create an online speech czar with broad, vague authority to combat narrow categories of online conduct.   In the U.S., Section 230 of the Communications Decency Act grants broad protections to online platforms against liability for content posted by users; it is, in many ways, what allows today's user content-driven Internet to exist.  In 2018, facing a scourge of online sex trafficking, Congress passed and the president signed FOSTA-SESTA into law.  Rather than throw the baby out with the bathwater and wholesale repeal Section 230, though, the law merely targets those who “inten[d] to promote or facilitate the prostitution of another person.”  

Mere weeks after FOSTA-SESTA went into effect, the DOJ successfully shut down Backpage, a website that notoriously facilitated online sex trafficking.  FOSTA-SESTA is far from perfect, and it potentially creates a dangerous precedent for future erosions of Section 230.  Nevertheless, it is a narrow, targeted measure that is far superior to the British alternative.

To longtime observers of European law, the U.K.’s latest move shouldn’t be particularly shocking.  Of course, the U.K. has no First Amendment.  In the U.K., one can be convicted of a crime for posting publicly-available rap lyrics to her Instagram account, teaching her pug how to imitate a Nazi salute, or making tasteless jokes on Twitter.

Nonetheless, Americans can no longer be smug on this issue.  Indeed, in recent years, Americans’ views on free speech have hardly been inspiring.  According to a 2015 poll, over 40% of Americans support criminalizing “hate speech.”  And according to a 2017 poll, 81% of college students believe “words can be a form of violence,” while 30% believe that physical violence is a justifiable response to someone “using hate speech or making racially charged comments.”  Yet in the same poll, 93% of college students said that free speech was “important to them.”

This erosion of American free speech culture is perhaps why Section 230 has come under such fervent attack in recent years by politicians of both political stripes.  Citing anti-conservative bias, one politician wants to strip platforms of Section 230 immunity altogether unless they remain in the good graces of a blatantly unconstitutional, Orwellian political neutrality czar.  Others view the issue, similar to the British, through the prism of preventing supposed hate speech, claiming online platforms “have a responsibility to help fight against this threat to our democracy.”  Even the attorney general has piled on, questioning whether Section 230 “is still needed.”

America would be wise to avoid the British example here and should instead fearlessly lean into Section 230.  Section 230 isn’t perfect, but to do otherwise would inevitably curtail lawful speech.  As former Justice Anthony Kennedy once wrote, “[t]he First Amendment is often inconvenient.  But that is beside the point.  Inconvenience does not absolve the government of its obligation to tolerate speech.”

Kirk R. Arner is a legal fellow at the Hudson Institute.