The Significance of Sen. Lee’s Question to Judge Jackson on Online Viewpoint Discrimination

In today’s confirmation hearing for Judge Ketanji Brown Jackson, Sen. Mike Lee (R-UT) asked the Supreme Court nominee about her stance on viewpoint discrimination by online platforms. He asked Judge Jackson about Section 230 of the Communications Decency Act, which grants broad immunity to social media platforms for posts made by their users.
 
In so doing, Sen. Lee touched on the hot topic of the removal of posts and demonetization of content creators (seen most recently in the Twitter/ Babylon Bee controversy).
 
Sen. Lee asked: “Wouldn’t it be within Congress’s authority to condition a receipt and an availability of Section 230 immunity on those online interactive service providers operating as a public forum, not discriminating on the basis of viewpoint?” Plainly put, Sen. Lee was asking if Congress could put conditions for viewpoint protection in exchange for Section 230 immunity.
 
Though Judge Jackson’s answer was non-committal, the question perhaps says a lot about the state of mind of Senate Republicans. Instead of seeking to try to regulate the First Amendment rights of social media companies – likely to be struck down in court – there is a growing recognition that a workable balance might be reached in continuing Section 230’s benefits while protecting robust speech online from ham-handed “content moderation.”
 
Perhaps this is a sign that more senators are ready to sign on to the Platform Accountability and Consumer Transparency Act (PACT Act), co-sponsored by Sens. Brian Schatz (D-HI) and John Thune (R-SD).
 
The PACT Act would require social media companies that wish to continue to enjoy Section 230’s immunity to give social media posters more transparency about content decisions, and an appeals process for censored content and individuals. It is a way to address free speech on the large sites that dominate the public discussion while respecting the First Amendment.