By Harold Hutchinson
There is a chance you missed the massive bombshell from Wednesday, and not because you were off in some remote part of the world without internet access. The New York Post published a report that included emails obtained from a laptop Hunter Biden left with a computer repair shop, and never picked up, while also not paying for the data recovery. However, the report, which was added confirmation to what many already suspected about Hunter Biden, was overshadowed by the reaction of Big Tech. Facebook and Twitter openly suppressed the article. Among those who had their accounts locked for sharing it were White House press secretary Kayleigh McEnany, the New York Post itself, and President Trump’s re-election campaign’s account.
Twitter has locked out @TeamTrump for posting video of clips of Joe Biden lying about never speaking to Hunter about foreign business deals.
Includes snips of @nypost exposing the lies.
Biden doesn’t dispute the authenticity of the docs.
STILL protecting Biden from bad story. pic.twitter.com/VGJPYGiwlU
— Tim Murtaugh – Download the Trump 2020 app today! (@TimMurtaugh) October 15, 2020
Such measures were not taken when the New York Times did a story based on a potentially illegal leak of tax data from President Trump’s tax returns (which opens a different avenue of concern), creating the appearance of a double standard. That censorship has also, in effect, ended the debate on the right over whether government should intervene to deal with Big Tech’s censorship, with Philip Klein of the Washington Examiner tweeting, “Thanks to actions taken by FB and Twitter today, my side is going to lose this battle. Badly.”
There has been significant debate among conservatives regarding Big Tech censorship, with those such as myself fighting attempts to have government target Twitter and FB over bias. Thanks to actions taken by FB and Twitter today, my side is going to lose this battle. Badly.
— Philip Klein (@philipaklein) October 14, 2020
However, while the debate on the right may have ended, passing the legislation to alter or abolish Section 230 of the Communications Decency Act is a whole different matter. Even if Republicans take the House, there is very little chance they will have the 60 votes needed to overcome a likely filibuster in the Senate – since Democrats will have their own ideas about how to reform Big Tech, and those ideas don’t exactly involve ending the bias that we currently see. This leads to the question, “What can be done about Big Tech’s bias?” There are, in fact, a host of answers, some of which may not involve changing Section 230, but could include enforcing other laws.
Federal Election Commission Complaints
One avenue may be open to candidates for office – the filing of complaints with the Federal Election Commission. Anna Paulina Luna, the Republican nominee in Florida’s 13th congressional district, currently represented by former governor Charlie Crist, has not been able to be verified by Twitter. She has filed a complaint claiming that Twitter’s failure to do so constituted an illegal in-kind donation to Crist.
The @Twitter corporation is providing a free service to Charlie Crist that helps him promote his message and increases his fundraising while refusing to provide the same service to me. That is illegal corporate support of a federal candidate.
See you in court @Twitter. pic.twitter.com/QnSTsuKMLA
— Anna Paulina Luna (@realannapaulina) October 14, 2020
This will be an important case. While some might think Laura Loomer, the Republican nominee for Florida’s 21st congressional district (currently represented by Lois Frankel), could have a better case given Twitter’s outright ban, which they refused to overturn despite her status as a nominee for Congress, she is less of an ideal candidate for this challenge given some of the controversies she’s been involved in and the very heavy Democratic lean in her district. The 13th is seen as a “swing district,” and thus a race is more likely to be affected by Big Tech’s interference. If Luna’s complaint succeeds, there may be precedent to force some easing of the censorship as it applies to political races. It would be a partial step towards ending Big Tech’s censorship.
Anti-Trust/Consumer Protection Litigation
The fact is, Facebook and Twitter dominate the social media landscape. Facebook, in particular, bought up a lot of potential competitors, like Instagram. At least one other competitor, Gab, was barred from the app stores of Apple (maker of the iPhone) and Google (whose Android software is used by many other phones). All of this could lead to some action on the anti-trust front. Now, the last big anti-trust case involving tech was U.S. v. Microsoft, which could have led to the company’s breakup prior to the revelations of misconduct by Judge Thomas Penfield Jackson (as an aside, the lawyer who had to defend the states and D.C. and who drew the short straw in addressing Jackson’s conduct for the pro-break-Microsoft-up side was John Roberts, now Chief Justice of the Supreme Court). Now, if the anti-trust case is won, there is no need to break up Facebook, Twitter, Google, Apple, or Amazon. All that is needed is to level the playing field, in which case, it could enable social media companies that advertise support for free speech, like Parler and Gab, to compete on a level playing field. As was the case with Microsoft, state attorneys general could also act on anti-trust grounds, and depending on the state, could also use state consumer protection laws to hammer Big Tech for misleading advertising or for political viewpoint discrimination in cases of uneven application of moderation standards.
There may also be the chance to use defamation lawsuits by people who have become the target of social media mobs. Section 230’s provisions only provide safe harbor when the removal of material is done in “good faith.” That provision could easily be challenged with evidence of clear double standards in enforcing the rules. For instance, the disparate treatment of the New York Post article on Hunter Biden’s emails and the New York Times coverage of Donald Trump’s tax data is one such area.
Big Tech may try to brush off Congressional oversight hearings, but massive defamation judgments could be a whole different kettle of fish. Incidentally, Twitter is among the companies being sued by Nick Sandmann for defamation whose cases are still pending. There is nothing that would prevent conservative legal watchdogs like Judicial Watch from filing amicus briefs arguing that Big Tech companies have become publishers either, in such cases. At the very least, the question could be put to a jury. All in all, even if immediate reform or repeal of Section 230 is not in the cards, there is much that can be done to address Big Tech censorship. Some of these may actually address the problem for the most part without even touching that provision, which may be the best possible outcome.
Harold Hutchison has nearly two decades of experience covering a variety of topics, including politics, national security affairs, foreign policy, Second Amendment issues, and sports. He has been published in numerous media outlets, including National Review, the Daily Caller, the Patriot Post, Ammoland.com, and the Washington Examiner.