NTIA Follows Trump's Unconstitutional Order To Request The FCC Review Section 230

from the there-are-problems dept

As we mentioned on Friday, on Monday, the NTIA followed through on a key part of Trump's executive order on Section 230, asking the FCC to weigh in on interpreting the law. Everything about this is crazy. The NTIA request was almost certainly written by a recently hired lawyer who has spent the last couple of years attacking Section 230. He's also the same lawyer who sued Twitter on behalf of a white supremacist, and when I had reached out to him over email to ask him how that made sense under 230, insisted to me that Section 230 was a narrow statute that only applied if it was about protecting children. I can't say for sure, but my email exchange with him suggested to me that he was wholly unaware of Section 230 prior to me asking about it. Either way, that case failed spectacularly, and Adam Candeub has spent the past two years attacking 230 on various panels. And now he's deputy secretary at NTIA in charge of this issue.

The petition to the FCC is performative nonsense, just like the Executive Order that preceded it. The FCC has no authority over internet edge providers. It has no authority to interpret Section 230. That's for the courts. And if Congress doesn't like how the courts have interpreted the law, then it's on Congress to change the law. The FCC has literally no authority at all to deal with this issue. And, you would think that since we're living in an era where the current FCC, under Chair Ajit Pai, has been literally giving away whatever authority the FCC actually has regarding the area it does have oversight concerning (namely internet access providers), that it would take a similar hands off approach to the NTIA request. Unfortunately that doesn't seem likely.

Pai has remained basically silent on this issue since the executive order came out. His fellow Republican Michael O'Rielly has suggested it's probably unenforceable gibberish. However, the third Republican on the Commission, Brendan Carr, has spent the last few months gloating and tweeting Trumpian nonsense about how "big tech" is censoring conservatives and something must be done (that this is 100% diametrically opposed to his views on regulating broadband access providers is not something he thinks you should concern yourself with -- this is a Trumpian world we're living in and so all that seems to matter regarding regulatory control is which companies you like and which you don't like).

Carr published a hilariously ridiculous plan to regulate big internet companies in Newsweek to coincide with the NTIA petition, which he knew was coming. He claims -- hilariously incorrectly -- that the success of big internet is not because of the free market, which he as a good Republican has to pretend to support, but rather through "crony capitalism" like... Section 230. In fact, he flat out misleads everyone in claiming that Google abused its power to shut down the comments of The Federalist because it's a conservative publication. Carr ignores that Google did the same thing to us, even though he knows they did it to us, because I told him about it and he follows me on Twitter.

But to argue that 230 is crony capitalism is to ignore facts (apparently, a Carr specialty). Section 230 does not favor any particular company. It applies equally to all websites, including small ones. Indeed, our empirical study showed that 230 helped create more competition, not less.

On the Democratic side, Commissioner Jessica Rosenworcel seems to be alone in being willing to call bullshit on this ridiculous NTIA petition:

Section 230 has been called “the twenty-six words that created the internet,” and it has helped free expression flourish online for decades. Like most things with the internet, it has its supporters and detractors. It has those who want to see it continue in its current form and others who want to adjust it to reflect the realities of the current digital age. But if you look far and wide, you won’t find a community that believes having the FCC use Section 230 to regulate speech online is the way to go.

Still, the Administration is insisting. Remember, at the highest level of our government we’ve had rants about social media bias and accusations that certain companies are stifling speech. But the First Amendment is not present to protect the President from media. It’s present to protect media from the President. Nonetheless, those rants eventually found their home in an Executive Order—which brought this issue to the FCC.

As a Commissioner, I don’t think we should take the bait. While social media can be frustrating, turning the FCC into the President’s speech police is not the answer. The FCC needs to reject this effort to deploy the federal government against free expression online. In fact, if we honor the Constitution, we will do so immediately.

I worry my colleagues at the FCC won’t. I also worry that this petition is not just about changing the law. Because any legal expert worth their salt will tell you that changing the law like this is not the job of a regulatory agency like mine. It’s the job of Congress. I think the NTIA knows that. But even just proposing something like this has consequences. Governments that threaten to chill speech can discipline private sector actors without changes in law ever becoming necessary. So what we have here is an invitation from the President for the FCC to chill online speech and organize it in his favor. We need to reject this loud and clear.

Kudos to Commissioner Rosenworcel for being willing to speak out so clearly and forcefully on this silly dog and pony show for an insecure President. It's too bad that the Commissioners on the other side of the political spectrum haven't been willing to say things this clearly, and you have someone like Carr who seems all too willing to suck up to the President on this unconstitutional attack on free speech.

And it is unconstitutional. Our post last week dug into the many, many reasons why it's unconstitutional, but at the simplest level it's this: it's an attempt to pressure internet companies to leave up speech that is supportive of the President, no matter how false or how dangerous that content might be. That's not what the government is supposed to be doing.

The NTIA's petition reads like it was written in an alternate universe that is divorced from reality. It pretends that the FCC needs to regulate speech to protect free speech, which is not how any of this works. The petition misrepresents the law, the same way that Trumpists have been misrepresenting Section 230 in court, including this silly claim:

These platforms function, as the Supreme Court recognized, as a 21st century equivalent of the public square.

And then it has a footnote pointing to the Packingham ruling ignoring that that ruling is saying simply that the government cannot pass laws that kick people offline, and does not say that companies can't kick racists and assholes off of their own platforms. Indeed, in the more recent Halleck case, the Supreme Court made it abundantly clear that it does not consider social media to be a state actor subject to such regulations. For NTIA to pretend otherwise is ridiculous, and shows just how biased this petition is.

As for the specific requests, it wants the FCC to do the following:

  • clarify the relationship between 230(c)(1) and (c)(2);
  • explain the meaning of “good faith” and “otherwise objectionable” in section 230(c)(2);
  • specify how the limitation on the meaning of “interactive computer service” found in section 230(f)(2) should be read into section 230(c)(1); and,
  • explicate the meaning of “treated as a speaker or publisher” in section 230(c)(1).
Again, none of these are within the FCC's authority, and even if they were they have no binding or persuasive power at all. The courts have already ruled on these issues for the most part, and there's little to clarify here. If Congress was upset about the court's interpretations, it's had nearly 25 years to clarify and it has not. There is no role here for the executive branch, let alone an independent agency tasked with overseeing broadband access and public spectrum, not regulating the internet.

The FCC should listen to Rosenworcel and tell the administration "that's not our job, and you shouldn't even ask."

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Filed Under: ajit pai, brendan carr, donald trump, executive order, fcc, free speech, jessica rosenworcel, michael o'rielly, ntia, section 230

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  1. icon
    arp2 (profile), 28 Jul 2020 @ 2:38pm

    It isn't Unconstitutional, until it is...

    Meaning, there's a reason that Trump has stuffed the courts with minions. The lower courts will allow the FCC's crappy decisions to stand and if we're very lucky, SCOTUS will weigh in and state it is Unconstitutional. But until then, we'll might have to live with a crappy ruling from the Federal Circuit.

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