Wicker Calls CDA 230 Bill ‘Very Reasonable’; Others Disagree

Anti-conservative bias was part of GOP thinking with recent Section 230-related legislation (see 2009080082), Senate Commerce Committee Chairman Roger Wicker, R-Miss., told us, calling his Communications Decency Act bill a “very reasonable proposal.” Academics likened the legislation to President Donald Trump’s social media executive order (see 2007230072), saying both are driven by unfounded claims of bias.

“It’s out there. To me, it’s obvious,” Wicker said of the anti-GOP bias. “We have a very reasonable proposal. The ‘otherwise objectionable’ wording, you could just drive a Mack truck through that hole.” He was referring to the Online Freedom and Viewpoint Diversity Act, which would replace “otherwise objectionable” with concrete terms for defining content moderation liability for posts involving terrorism, unlawful content and self-harm.

When the legislation was introduced, “it didn’t register because it didn’t seem like it was going to be enacted,” Sen. Brian Schatz, D-Hawaii, told us.

Wicker’s co-sponsor, Senate Judiciary Committee Chairman Lindsey Graham, R-S.C., introduced another bill Monday targeting Section 230. The Online Content Policy Modernization Act (S-4632) would establish an alternative dispute resolution program for copyright small claims and amend the Communications Act. It would modify the “scope of protection from civil liability for ‘good Samaritan’ blocking and screening of offensive material.” Graham’s bill is slated for Judiciary markup Thursday, though legislation is typically held at least one week. Graham called it a “package,” which will “give the committee jurisdiction to vote on 230.”

The Online Freedom and Viewpoint Diversity Act -- from Wicker, Graham and Sen. Marsha Blackburn, R-Tenn. -- is “very similar in intent” to Trump’s social media EO, said New York University Stern Center for Business and Human Rights Deputy Director Paul Barrett: The new bill, the EO and other pieces of GOP legislation on 230 “share a desire to punish the main social media companies for the supposed anti-conservative bias,” for which systemic evidence is lacking, Barrett said. Wicker’s bill is more “performance art” than “serious legislating,” he said, noting lack of Democratic sponsorship.

Barrett contends the essence of CDA should be preserved because it helped “foster an open and swift and fluid internet” and continues to shelter small business from burdensome litigation. The section can be improved and used to address wide-ranging concerns about “harmful content” by introducing new obligations tied to statutory protections, he said, recommending a new digital regulatory agency.

The Wicker bill “amounts to more chumming of the political waters for Trump's base,” which is pushing the anti-conservative bias narrative, said University of Florida Brechner First Amendment Project Director Clay Calvert. Replacing the term “considers to be” with the phrase “has an objectively reasonable belief” is designed to “reduce the wiggle room and discretion currently afforded” to social media platforms when “they choose to remove content,” he added. Democrats and Republicans likely would have different opinions when defining “an objectively reasonable belief,” he said. Defining concrete terms for harmful content on self-harm and terrorism “is intended to cabin and confine the discretion” afforded to platforms through 230, he said.

“This seems more like an effort to support Trump’s reelection,” said University of Richmond law professor Carl Tobias.