Compelling Code: A First Amendment Argument Against Requiring Political Neutrality in Online Content Moderation

The Internet’s most important law is under attack. Section 230, the statute that provides tech companies with legal immunity from liability for content shared by their users, has recently found its way into the spotlight, becoming one of today’s most hotly debated topics. The short but mighty provision ensures that tech companies can engage in socially beneficial content moderation (such as removing hate speech or flagging posts containing misinformation) without risking enormous liability for any posts that slip through the cracks. Without it, companies would be faced with the impossible task of screening every post, tweet, and comment for potential liability.

In spite of the essential role Section 230 plays in the modern Internet, lawmakers from across the political spectrum have condemned the statute––and the tech giants that it protects. While Democrats say social media companies should be held responsible for failing to quash the misinformation and radicalization on their platforms, many Republicans believe that social media is biased against conservative views.

In 2019, Senator Josh Hawley (R-Mo.) introduced a bill that exemplifies conservatives’ criticisms of big tech and Section 230. The Ending Support for Internet Censorship Act seeks to eradicate the alleged “anti‑conservative bias” on social media platforms by requiring large tech companies to maintain politically neutral content moderation algorithms and practices. This Note argues that requiring tech companies to maintain politically neutral content moderation algorithms is a form of compelled speech and is therefore presumptively unconstitutional under the First Amendment. Further, it argues that Senator Hawley’s bill cannot survive the applicable standard of strict scrutiny because eliminating alleged political bias by social media companies is not a compelling government interest, and, even if it were, the bill is not narrowly tailored to serving that interest.

With so many lawmakers calling for greater regulation of big tech, it is imperative now more than ever to defend the First Amendment rights of tech companies to their content moderation algorithms and to emphasize the importance of Section 230 to the Internet and its continued growth.