Ted Cruz offers a very strained defense of Trump’s social media executive order

Cruz, though, rests his case against those protections on a very flimsy premise.

In a series of tweets Friday morning, Cruz argued that companies like Twitter cede these protections when they stop acting as neutral platforms and begin policing content in a biased manner.

“Jake, CNN can be sued for defamation,” Cruz tweeted at CNN’s Jake Tapper. “Why should Twitter be immune?”

Several conservatives quickly pointed out the flaw in Cruz’s argument. Section 230 — the law Trump sought to recast with his executive order — doesn’t make Twitter immune from being sued; it is simply immune from being sued over what its users publish. Just like traditional journalistic companies are immune from being sued over what users publish in their comments sections, Twitter is immune when it comes to comments people post in the form of tweets. If Twitter produces its own content on the platform — like CNN does — that speech is not protected by Section 230.

When this was pointed out, Cruz suggested that the law required these platforms to be neutral. When they begin banning users or applying fact-checks to users’ content, he intimated, they forfeit the protections given to companies that are supposed to be allowing free discourse.

Cruz told the National Review’s Charles C.W. Cooke that Congress provided Section 230 protections because “they were ‘neutral.’ Now they censor.”

He added later: “Big Tech used to be neutral, allowing free speech. Now, they shadow ban & decide what to publish.”

The problem is that there is basically no indication that Section 230 requires political neutrality. The protection for comments from users on traditional media companies’ websites, for instance, also applies to ideologically oriented outlets.

To back up his claim that the law was intended for neutral platforms, Cruz cited explanatory language in Section 230. It says, “It is the policy of the United States … to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.” It also says that Congress believes 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.”

This is an utterly strange argument from Cruz, a well-credentialed lawyer and former solicitor general of Texas who has argued cases in the U.S. Supreme Court. The text he cites is not laying out requirements; it’s merely expressing the sense of the law’s authors. Nor does it say anything specifically about the platforms being protected being “neutral.”

What’s more, the law’s own author has rejected this assertion — in no uncertain terms. Sen. Ron Wyden (D-Ore.) explained in 2019 to Recode: “Section 230 is not about neutrality. Period. Full stop. 230 is all about letting private companies make their own decisions to leave up some content and take other content down. You can have a liberal platform; you can have conservative platforms."

He added: “There’s a lot of nonsense out there about what this stuff is all about.”

When Wyden made these comments, it bears emphasizing, Cruz had already been barking up this tree. In a 2018 hearing with Facebook founder Mark Zuckerberg, for example, Cruz pressed Zuckerberg on whether he was running a “neutral public platform” — apparently trying to pin him down and argue that Section 230 no longer protected Facebook. So you could potentially argue that Wyden was offering some revisionism to fight back against critics of his law.

But the law itself isn’t terribly subtle on this point. It makes clear, in fact, that these platforms have the ability to moderate their content, within some guidelines:

No provider or user of an interactive computer service shall be held liable on account of —

(A) any action voluntarily taken in good faith to restrict 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.

So when Cruz says, “Now they censor,” he’s actually referring to something explicitly allowed by the law. This requirement only indicates that the moderation/censorship should be in “good faith” — a far different standard than being politically neutral.

It also allows for the content to be restricted even if it contains “constitutionally protected” material as long the content is “excessively violent” — which could very logically apply to Twitter flagging Trump’s tweets about “when the looting begins, the shooting begins” — and when the content is “otherwise objectionable” — which could very logically apply to the factually dubious Trump tweets about vote-by-mail, to which Twitter has appended fact checks.

The best argument against social media companies like Twitter would be that they are somehow violating this requirement that their moderation be in “good faith,” but that’s not the argument Cruz is making. Instead, he’s suggesting that there’s some kind of neutrality requirement that simply isn’t in the text.

In his interview with Recode, Wyden was asked about conservatives making such an argument, and he offered a somewhat diplomatic answer. “I never want to go after people’s sincerity,” Wyden said, but then added: “I’m sure there’s always kind of the base that gets worked up, and the base hears that somehow this is being used against them.”

Propping up social media platforms as unfair arbiters of free speech is indeed a politically potent strategy — especially given that many of them are run by left-leaning people in California. There are few things better in politics than a sense of persecution by all-powerful political opponents like those sitting in their Silicon Valley ivory towers.

But however accurate it might be to cast any particular tech company as a boogeyman, that doesn’t change how this case against them relies upon what looks a whole lot like a straw man. It’s also a rather curious argument from someone like Cruz, who fashions himself a textualist relying upon the letter of the law.

The solution would seem to be to pass bills to change what the law actually says. That’s something Cruz is in a position to try to make happen — and for which there may even be significant bipartisan consensus, given the posture of Democrats up to and including House Speaker Nancy Pelosi (D-Calif.).

This feels a lot more like a political argument, though, than a legal one.