Recently Sen. Ted Cruz (R‑Texas) criticized the large tech companies who host private forums for speech and association. Having questioned representatives of the companies closely, Sen. Cruz concluded:
The pattern of political censorship we are seeing across the technology companies is highly concerning. And the opening question I asked of whether you are a neutral public forum — if you are a neutral public forum, that does not allow for political editorializing and censorship. And if you are not a neutral public forum, the entire predicate for liability immunity under the CDA [Communications Decency Act] is claiming to be a neutral public forum, so you cannot have it both ways.
Sen. Cruz is wrong about the Communications Decency Act. Section 230 of the Act does not require tech companies to provide a “neutral public forum.” The section does say that Congress finds that “the Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.” That finding does not create a legal obligation. Even if it did, those who support free markets would maintain that private management of internet forums would be the best way to attain diversity, cultural development, and intellectual activity. Beyond that, Section 230 of the CDA freed tech companies from liability for restricting “access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” In other words, Section 230 helps tech companies act non‐neutrally toward user generated content on their platforms!
The managers of the tech companies may wish to offer a neutral public forum for speech and association, even though the CDA does not require it. But that is very different from the government requiring neutrality. The Fairness Doctrine sought to enforce neutrality on broadcasters, a dangerous policy for the reasons discussed in this Cato Policy Analysis. Having the government manage speech to attain neutrality or fairness or other goals violates the freedom of speech. The managers of the tech companies (as agents of their owners) have the right to oversee these private forums as they see fit. The forums are, after all, private not government property.
I feel certain that once Sen. Cruz reconsiders his interpretation of CDA, he will return to form and support strong private property rights on the Internet. In doing so, he will also vindicate the speech and associational rights of the customers of the tech companies.
