Judiciary subcommittee hears testimony in hearing on alleged bias

Sen. Ted Cruz (R-Tex.) faced off with edge providers Wednesday (April 10) over the alleged anti-conservative bias on social media platforms.

The Senate Judiciary's Constitution Subcommittee was the venue for that discussion/confrontation. Cruz is chairman.

Testifying before the subcommittee were Carlos Monje, Jr., director of public policy and philanthropy, U.S. & Canada, for Twitter and Neil Potts, public policy director for Facebook.

Related: Cruz Says Big Tech Needs Reining In

Both sounded similar notes, which were that they did not censor conservative speech--or liberal for that matter--that they sometimes made mistakes that they corrected quickly when they found them, that they were improving their systems for vetting content, that they were dealing with a boatload of social media content per day--500 million tweets, over a billion Facebook posts--and that they were always trying to balance free speech with protecting their "safety" of their online communities. They both also declined to give Cruz a yes or no answer as to whether they considered themselves to be neutral platforms.

Notable for its absence was Google, which was disinvited after its representative was not considered high enough on the executive ladder. An empty seat was left at the witness table, according to ranking member Sen. Maizie Hirono (D-Hawaii), since she was not allowed to have them attend even as a minority witness. Hirono also argued that the witness was, indeed on par with the others.

Cruz said he was not looking to make the government the speech police, and conceded there had been bias in the media since journalists were carving on stone tablets. But he said the threat today was different, came from Big Tech and a combined enormous power with a lack of transparency.

He said lack of transparency about what Big Tech was doing was the reason that there was only anecdotal evidence of conservative bias. But he suggested the risk of those giant companies being able to disfavor speech with impunity, given what appeared to be a pattern of political bias, was troubling.

Related: Senate to Look at Alleged Tech Speech Bias

He said remedying that was a thorny issue given that he saw three avenues to address that Big Tech threat. The first was social media's liability protection from third party posts (Sec. 230 of the Communications Decency Act). He said he was not claiming the section required platforms to be neutral, just that the section was essentially a bargain between those edge providers and the government that they would be neutral platforms in exchange for what was essentially a government subsidy of immunity from liability. He said if they don't want to be neutral platforms, fine, but then they aren't entitled to the immunity the New York Times and Washington Post get.

Second was antitrust laws. He said by any measure Big Tech companies are more powerful than Standard Oil or AT&T when they were broken up. He said if they are using their monopoly power to censor political speech, that raises "real antitrust issues."

Third was fraud. He said most Facebook, Twitter and Google users don't envision that they are participating in a biased forum when they speak, and that the people who choose to follow will hear them, but that there was "distressing evidence" that was not the case. "Nobody knows how many speakers Twitter or Facebook is blocking."

Hirono suggested the hearing was a waste of time to the extent it focused on conservative bias she said did not exist and had been disproved, rather than issues like misleading YouTube info on vaccines, hate speech, Russian election meddling or social media's failure to remove video of the New Zealand shootings.

She said conservative perspectives abound and that the conservative bias charge was a mix of anecdotes and a misunderstanding of algorithms and content moderation practices.

"Anti-conservative bias simply doesn't exist," she said. Instead, she said, they were here because of politics, and Republican efforts to harass social media to get more favorable coverage by getting them to overcompensate, as she said they had with mainstream media. She said the new bogeyman was "Big Tech."

Before the hearing, Cruz was already getting pushback from some groups that could otherwise be expected to be allied with him on conservative issues.

“Senator Cruz is right: Tech companies ought to provide an open platform for speech across the political and ideological spectrum," said Americans for Prosperity senior tech policy analyst Billy Easley. "But asking the government to police online speech – either through direct action or by cajoling private firms – sets a dangerous precedent that will undermine essential elements of free speech. Government regulation of digital speech won’t protect free speech. It will only increase the likelihood of government censorship.

“Senators Cruz and [Lindsey] Graham [R-S.C.] misunderstand both the First Amendment and Section 230,” said Berin Szóka, president of TechFreedom, suggesting those longtime opponents of the broadcast Fairness Doctrine were looking to impose their own web version.

“Neither requires neutrality. Wrapping themselves in the First Amendment, both Senators talk about preventing ‘censorship,’ but ‘censorship’ is something only the government can direct. The First Amendment isn’t a sword by which the government can require neutrality or fairness; it’s a shield from such meddling by the government. Likewise, Section 230 was intended to encourage private companies to moderate and curate content as they see fit. Congress recognized that second-guessing those decisions would discourage website operators from trying to address harmful content on their sites.”