Days After FCC Commissioner Mike O'Rielly Suggests Trump's Section 230 Exec Order Is Unconstitutional… His Renomination To The FCC Is Withdrawn

from the petty-shit dept

Earlier today we wrote about how Ajit Pai was pushing ahead with the Commerce Department’s silly FCC petition regarding a re-interpretation of Section 230 of the Communications Decency Act. We noted that it wouldn’t actually be that hard to just say that the whole thing is unconstitutional and outside of the FCC’s authority (which it is). Some people have pushed back on us saying that if Pai didn’t do this, Trump would fire him and promote some Trump stan to push through whatever unconstitutional nonsense is wanted.

Well, now at least there’s some evidence to suggest that Trump also views the FCC — a supposedly “independent” agency — as his personal speech police. Of the Republican Commissioners, Brendan Carr has been quite vocal in his Trump boot-licking, especially with regards to Section 230. He’s been almost gleeful in his pronouncements about how evil “big tech” is for “censoring conservatives,” and how much he wants to chip away at Section 230. Pai has been pretty much silent on the issue until the announcement today. But the other Republican Commissioner, Mike O’Rielly, has at least suggested that he recognizes the Trump executive order is garbage. Six weeks ago he said he hadn’t done his homework yet, but suggested he didn’t think Congress had given the FCC any authority on this matter (he’s right).

Just last week, during a speech, he made it pretty clear where he stood on this issue. While first saying he wasn’t necessarily referencing the Trump executive order, he said the following:

Today, I would like to address a particularly ominous development in this space. To be clear, the following critique is not in any way directed toward President Trump or those in the White House, who are fully within their rights to call for the review of any federal statute’s application, the result of which would be subject to applicable statutory and constitutional guardrails. Rather, I am very troubled by certain opportunists elsewhere who claim to be the First Amendment?s biggest heroes but only come to its defense when convenient and constantly shift its meaning to fit their current political objectives. The inconsistencies and contradictions presented by such false prophets would make James Madison?s head spin, were he alive to witness them.

The First Amendment protects us from limits on speech imposed by the government?not private actors?and we should all reject demands, in the name of the First Amendment, for private actors to curate or publish speech in a certain way. Like it or not, the First Amendment?s protections apply to corporate entities, especially when they engage in editorial decision making. I shudder to think of a day in which the Fairness Doctrine could be reincarnated for the Internet, especially at the ironic behest of so-called free speech ?defenders.? It is time to stop allowing purveyors of First Amendment gibberish to claim they support more speech, when their actions make clear that they would actually curtail it through government action. These individuals demean and denigrate the values of our Constitution and must be held accountable for their doublespeak and dishonesty. This institution and its members have long been unwavering in defending the First Amendment, and it is the duty of each of us to continue to uphold this precious protection.

To be clear: I agree 100% with that statement, and am glad that O’Rielly was willing to stand up on principle to defend it.

And then, today, it was announced that the White House is pulling his renomination to the FCC. In other words, the White House is being a petty asshole, again, and firing anyone for not being in lockstep with the President’s ridiculous unconstitutional whims.

There was some talk last week about how Senator James Inhofe’s office was blocking O’Rielly’s renomination over a different issue: the approval of L-Band spectrum for use by Ligado (formerly LightSquared). A variety of government organizations had opposed the use of this spectrum, fearing that it might interfere with GPS systems. However, the Ligado deal was unanimously approved by all five commissioners, so it’s difficult to see why O’Rielly would be singled out, other than his nomination was up. The Inhofe/Ligado thing feels like a smokescreen for the 230 issue.

The question now is whether or not O’Rielly will serve out his term, or if he’ll leave now that his renomination is not being considered. One hopes that he’ll at least stick it out long enough to vote down the Petition on 230. Even if he did leave, it’s unclear if a new Commissioner would get through any confirmation process prior to the election. Either way, at least it’s nice to see one Republican Commissioner willing to stand up to Trump. We’ve criticized O’Rielly plenty of times in the past, but at least he’s not taking the path of Carr (and even Pai) in dealing with this nonsense.

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Comments on “Days After FCC Commissioner Mike O'Rielly Suggests Trump's Section 230 Exec Order Is Unconstitutional… His Renomination To The FCC Is Withdrawn”

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That One Guy (profile) says:

What strange timing...

I’m sure it’s a complete coincidence that his renomination was pulled almost immediately after he called out the free-speech hypocrites, which just so happens to include Trump, rather than yet more evidence that Trump considers the entire US government as working for him and is so incredibly petty that he will spitefully punish anyone who dares call him out on whatever his latest idiocy is.

David says:

Re: Makes you want to hear Sean Hannity's take on it, doesn't it?

Always educating to see a practised interpretation of "now how to spin this?". It’s almost sad that more often than not the answer is "We’ll return to the news after a brief distraction. Or a not so brief distraction. And we’ll not actually be returning to the news. It’s not like we were there before anyway."

Rolander says:


Obviously the FCC is not really "independent" of politics and never has been.

FCC is managed by non-virgin political appointees and is heavily influenced by the political winds of any current President and Congress.

The notion that any "independent Federal agency" can actually function outside the control of the only 3 formal Federal branches (Congress, President, SCOTUS) is political fantasy.

This comment has been deemed insightful by the community.
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John Roddy (profile) says:

Xzibit A

So the Trump administration just censored someone for no reason other than having a conservative viewpoint about an order that they claimed was specifically to prevent others from censoring anyone for no reason other than having a conservative viewpoint?

Glenn says:

Humans–aka living creatures–have innate rights. Corporations do not have such rights. That being said, the people who work at corporations have said rights. Try not to confuse the two. Corporations don’t actually do anything; the people at each corporation do whatever is done, say whatever is said.

If you exist nowhere but "on paper," then you have no rights beyond those enumerated in your various contracts with others. The Constitution only applies to people, as in "We the people…" Everyone with a functioning brain knows this.

sumgai (profile) says:

Re: Re:

Everyone with a functioning brain knows this.

Well, I happen to "function" on a higher level then, because I recall where 144 years ago, SCOTUS sorted out this question once and for all – corporations have the same rights and duties as a "living, breathing human being". The reason for that decision was something called a legal fiction, and that was based upon the 14th Amendment. Go look it up, and be amazed.

Anonymous Coward says:

Re: Re: Re:

Why’s it better to be wrong that corporations have no rights? The people who work at the corporation, and those who invest in it, would still have rights—e.g., the right to not have their business arbitrarily interfered with by government, to give their personal money to politicians, to say what they want as individuals. What’s the benefit of treating a corporation as a person in its own right?

Anonymous Coward says:

Re: Re:

I will agree that corporations are people after Texas executes one. Everyone is entitled to their own opinion, citizens united was a horrible ruling which, among other things, opened the door to unlimited and untraceable campaign contributions.
Money == speech, which means corporate entities wield more speech than ordinary citizens, I do not think this is what was intended and certainly is not good for the country.

R.H. (profile) says:

Re: Re: Re:

While not Texas, New York has already done this. In 1890, New York’s highest court revoked the charter of the North River Sugar Refining Corporation on the grounds that it was abusing its powers as a monopoly. Judicial dissolution (the formal name for the corporate death penalty) is a power held by the states since we don’t have federal chartering for corporations.

David says:

Re: Re:

Cf Anthony Tata. After it turned out that he’d not make it through Senate confirmations for Pentagon defense secretary because of outlandish public statements and conspiracy theories he spread, he withdrew his application and was nominated by Trump to act as deputy Pentagon defense secretary, a position not needing Senate confirmation. Neither is Senate confirmation required for the deputy Pentagon defense secretary becoming acting Pentagon defense secretary when the Pentagon defense secretary is reassigned or fired and the president does not bother proposing a replacement.

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