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 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:

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.

Filed Under: donald trump, executive order, fcc, free speech, independent agency, mike o'rielly, section 230, social media


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  • icon
    PaulT (profile), 18 Jun 2020 @ 7:37am

    "Mike O'Rielly"

    That's... really how he spells his name? My eyes twitch every time it's written...

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Jun 2020 @ 9:43am

      Re:

      That's a very common spelling... what exactly do you believe is wrong with it?

      reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 19 Jun 2020 @ 4:18am

        Re: Re:

        I've never seen it before, every spelling I've seen is O'Reilly. I'm not saying he's wrong necessarily, it just makes my brain hurt a little bit, similar to an Irish guy I know whose name is spelled Micheal.

        reply to this | link to this | view in chronology ]

  • icon
    Bloof (profile), 18 Jun 2020 @ 8:34am

    Unfortunately the moment republicans retake both chambers they're going to push horrendous changes as they've found something they can attack to win brownie points with the crazies in their base that probably won't cost them any goodwill from their donors. Google probably don't spend big money in the race for a Louisiana house seat in a district that represents one single 60 year old racist farmer and a tractor called Ayn.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 18 Jun 2020 @ 9:51am

      Re:

      "the moment republicans retake both chambers"

      This will not happen anytime soon as they have pretty much self destructed and recovery is not on their radar. This is a death cult apparently and they want to take everyone else with them. However, I do not think that I am wearing the correct tennis shoes, guess I wont be raptured then huh.

      reply to this | link to this | view in chronology ]

      • identicon
        David, 18 Jun 2020 @ 10:34am

        Re: Re:

        "the moment republicans retake both chambers"

        This will not happen anytime soon as they have pretty much self destructed and recovery is not on their radar.

        Democrats tend not to last more than two presidential terms in modern times. And it's not clear, even assuming Biden wins, that he will last two terms since his main attraction is "anybody but Trump" and that may not be enough to last two terms.

        Even assuming two full terms, the judge rubberstamping machine currently ongoing in the Senate will have political consequences for much longer and will hamstring any convincing reforms that would make people see long-term success in what Democrats try to achieve.

        Republicans are not preparing as much for suicide as for hibernation.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 18 Jun 2020 @ 12:54pm

          Re: Re: Re:

          I see your points however - I think the repubs have really screwed the pooch this time and there is no turning back the clock. Their unwavering support of the failed administration with its failed policies in addition to their willing participation in the criminal activity conducted by this administration should land them in jail, but we all know that will not happen.

          tldr: It is different this time (lol)

          reply to this | link to this | view in chronology ]

          • identicon
            David, 18 Jun 2020 @ 1:14pm

            Re: Re: Re: Re:

            Jail would require a Department of Justice interested in justice. The current DoJ cannot be interested, and if there is a change of presidency, Trump will most certainly do a Gerald Ford and hand around presidential pardons like candy for any act committed in office.

            reply to this | link to this | view in chronology ]

            • identicon
              teka, 19 Jun 2020 @ 6:17am

              Re: Re: Re: Re: Re:

              an eleventh hour pardon-spree, followed by stepping down just before the clock runs out and being pardoned incredibly broadly in turn by Pence just before noon would be an interesting legal juggling act.

              reply to this | link to this | view in chronology ]

      • icon
        Bloof (profile), 18 Jun 2020 @ 12:39pm

        Re: Re:

        Republicans shouldn't have gotten either chamber back after Bush, but it's amazing what the media bothsidesing issues and your backers being able to spend unlimited amounts of money can do for ones electability.

        Racism also helps.

        reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 18 Jun 2020 @ 1:01pm

    Please...

    Can I move to China before this happens??
    At least you know where you stand, and how things are done.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 18 Jun 2020 @ 2:37pm

    Watching the FCC's various Conservative FCC Commissioners try to avoid upsetting dear leader and acknowledging this somewhat important fact has been... entertaining

    It's also scary as fuck. It's scary watching civil servants and even Trump-supporting types making statements while trying not to upset the emperor-in-his-own-mind when they know damn well that reality lies 200 miles in the opposite direction of that on which they are commenting.

    reply to this | link to this | view in chronology ]


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