Our buddy, and the junior senator from Missouri, Josh Hawley is at it again. Lots of folks are upset about political comments on Internet giants like Facebook and he wants to put Washington in charge. David French at NRO and Elizabeth Nolan Brown at Reason do a good job of explaining why Josh has a particularly foolish bill. Of course you should real both of them in their entirety. Here is David’s description:
[Josh] wants to replace common sense with a legal fiction, making Facebook responsible for user comments unless it can satisfy an extraordinary condition — it has to prove to the Federal Trade Commission [FTC] by clear and convincing evidence that it doesn’t moderate content in a manner “designed to negatively affect a political party, political candidate, or political viewpoint” and that its moderation doesn’t “disproportionately restrict or promote access to, or the availability of, information from a political party, political candidate, or political viewpoint.” [Emphasis added]
Josh’s proposal would put the Internet giants in an impossible position and make them subject to FTC’s whims. Do we think we will get limited government with Facebook appearing before the FTC every two year? As you are already going to read David and Elizabeth, we shall limit our comments to conservatism and level of proof.
We want to make clear that changing the level of proof would not make the bill acceptable but the level of proof shows how poorly thought out or dishonest Josh’s bill is. Josh says:
“Today I’ve introduced legislation to end Big Tech’s biggest sweetheart deal from government,” [Josh] tweeted Wednesday morning. “No more government protection for Big Tech’s political censorship.”
As the bold shows, Facebook will need to show clear and convincing evidence of lack of bias. It is an daunting task especially when you think about all the groups you could show bias against. Nolo gives us four legal standards of proof in ascending order: Substantial Evidence, Preponderance of Evidence, Clear and Convincing Evidence, and Beyond a Reasonable Doubt. Josh’s choice is, according to Nolo, reserved for civil lawsuits where something more than money is at stake. The bill is not going to reach Josh’s stated goal because Facebook will not meet that standard and that would mean much more government involvement.
And that brings us to conservatism and conservatives. Part of political classifying is the Venn Diagram issue. How much to folks need to overlap before you can give them a common categorization? But it also a matter of priorities and thinking process. There might be substantial evidence based on his positions that Josh is a conservative but his processes and priorities are clear and convincing evidence to us that he is not. We are not voting for him in the ’24 presidential primaries that he is clearly positioning himself but we shall reserve judgement on the general election. It will be another binary choice.