FCC's O'Rielly Musters A Tiny Bit Of Courage To Almost Acknowledge Trump's Executive Order Is Unenforceable Gibberish
from the standing-up-to-dear-leader dept
So we’ve already noted how Trump’s executive order governing social media is a load of fluff and nonsense. Like most brain farts that stumble out of the head of the current president, there’s been a lot of breathless hyperventilation about what the executive order means, despite the fact the order itself is largely indecipherable gibberish. You can’t ignore the rule of law and the Constitution via executive order, and the order’s underlying justification (that social media outlets disproportionately target Conservatives) is, and has always been, unsupportable bullshit.
Initially, at least, buried under the din of confusion was the fact that the order effectively just shovels the onus over to the FCC and FTC to enforce the unenforceable. To be very clear: while the order demands the FCC “expeditiously propose regulations” to crack down on social media websites, in absolutely no universe do they have the authority to do this.
Watching the FCC’s various Conservative FCC Commissioners try to avoid upsetting dear leader and acknowledging this somewhat important fact has been… entertaining. Brendan Carr responded by taking a big guzzle of the Trump Kool Aid and doubling down on his breathless praise of dear leader:
— The White House (@WhiteHouse) May 28, 2020
The more reserved Ajit Pai just basically hid under his desk and refused to offer much of a comment, knowing the Trump order was nonsense, but also knowing the scandal would probably soon be supplanted by something dumber. Of the three, only Mike O’Rielly appears to have mustered barely enough courage to admit the FCC might not be able to do what Trump wants. Again, because regulators can’t magically overrule the will of Congress, and precedent dictates they can’t regulate websites:
“Michael O’Rielly, part of the FCC’s 3-2 Republican majority, says he has doubts about whether the FCC has authority to implement Trump’s order regarding Twitter and other online platforms…O’Rielly discussed the topic on C-SPAN last week, saying he won’t take a position until he has researched the topic more thoroughly. “I haven’t taken a position because I have to do my homework,” O’Rielly said, adding that he has “deep reservations” that the FCC has authority to act as Trump directed.”
Mmm yes, a supposed expert on the nation’s legal and regulatory policy framework needs to apparently “do some more homework” to figure out whether the FCC has authority the vast, vast majority of experts state it clearly doesn’t have. That’s as close as you’re going to get to anything resembling political courage out of this telecom industry ass kissing FCC. And even then, O’Rielly’s commentary is filled with caveats implying that this is somehow an issue that still needs debating:
“O’Rielly said he plans to speak with people who wrote the Section 230 statute that was passed in 1996 and other “knowledgeable people about the matter,” to determine whether Congress “intentionally gave us authority, or accidentally gave us authority,” or gave the FCC “no authority…O’Rielly was a congressional staffer at the time Section 230 was passed. “My memory is pretty good on those things,” O’Rielly said. “I have deep reservations that [Congress] provided [the FCC] any intentional authority for this matter but I want to listen to people. I want to see if other memories are different from mine. There weren’t many people in the room.”
It’s not a matter of “memory.” Congress did not. There’s nothing murky here. Go ask FCC policy experts like Harold Feld, who has spent the better part of a lifetime studying the wonkiest aspects of FCC authority:
“The FCC is an independent agency. Congress deliberately insulated it from direct control of the President in order to prevent the President from using it against political opponents and to ensure representation by both political parties. As events keep showing, this turned out to be a pretty smart move.”
As Feld notes, the President can’t just demand the FCC do something. While the President can order the NTIA to file a Petition with the FCC to do something outside of its jurisdiction, that doesn’t magically mean the FCC can actually do so. As such, while this whole thing might get a docket number and see ample pearl clutching “censorship” headlines from the MAGA set right around this summer and fall election season (arguably the entire and only goal), it’s extremely unlikely it ever results in anything substantive since the EO is little more than a brain fart in prose form.
Pai, Carr, and O’Rielly all know this. O’Rielly is at least able to vaguely hint in the general direction of where reality is located way across the post-truth MAGA valley. Carr took the complete opposite tack because it’s fairly clear he has bigger, broader ambitions:
One is running to be the next Trump FCC Chair. The other is not. https://t.co/6IjSRDddQi
— Ernesto Falcon (@EFFFalcon) June 15, 2020
Historians, with any luck, will correctly look back at this era as one of near immeasurable sycophancy, where facts were easily and routinely discarded for the benefit of an unqualified, authoritarian leader. But in the shorter term, this whole thing will consume a ton of calories, taxpayer money, and brain power. But it’s a bunch of sound and fury, signifying nothing. Something the folks at the Pai FCC would clearly and unequivocally acknowledge had they the faintest shred of backbone.