A Federal Communications Commission decision to review a liability shield for Twitter and Facebook fulfills the wishes of President Donald Trump and his conservative allies, yet has prompted questions about the agency’s authority and political motivations.
With less than three weeks before the election, the FCC’s Republican Chairman, Ajit Pai, said the agency would seek to “clarify” the platforms’ exemptions from liability for how they handle users’ posts. That would fulfill an executive order issued in May by Trump to rein in Big Tech after Twitter started to fact-check the president’s posts.
“Social media companies have a First Amendment right to free speech,” Pai said in a statement announcing his move. “But they do not have a First Amendment right to a special immunity denied to other media outlets, such as newspapers and broadcasters.”
The announcement came hours after Senate Republicans demanded the chief executive officers of Facebook and Twitter explain steps their sites took to limit the distribution of a controversial New York Post article concerning Hunter Biden, the son of Democratic presidential nominee Joe Biden. Twitter and Facebook said they did it because of to questions about the article’s accuracy and use of hacked material.
Trump also cried foul, tweeting that “If Big Tech persists, in coordination with the mainstream media, we must immediately strip them of their Section 230 protections.”
Yet analysts are divided over whether the FCC even has the authority to rewrite crucial language known as Section 230 of the Communications Decency Act that shields the platforms from liability. Even if Pai’s FCC succeeds in amending the rules, those changes would risk an immediate court challenge and could later be reversed if Biden wins the presidency and nominates new members to the commission.
The two Democrats on the five-member board condemned Pai’s announcement. “The timing of this effort is absurd,” said Jessica Rosenworcel. “The FCC has no business being the president’s speech police.”
Geoffrey Starks called the president’s executive order “politically motivated.”
The law in which Section 230 is embedded makes no allowance for an agency interpreting its rules and lawyers disagree whether the FCC can do it with regulation or if Congress needs to alter the law.
But Pai said the agency’s general counsel told him the the FCC has the legal authority to interpret Section 230. “Consistent with this advice, I intend to move forward with a rulemaking to clarify its meaning,” he said Thursday in a statement announcing his plans.
The cause against Section 230 got a lift on Tuesday when Supreme Court Justice Clarence Thomas wrote in a statement about a case the court declined to hear that the high court should consider whether the “increasingly important statute” supports the “sweeping immunity” that many courts have granted to online platforms.
Thomas said extending Section 230 “immunity beyond the natural reading of the text can have serious consequences.”
The Supreme Court has never ruled on Section 230, but if it follows Thomas’s urging, it could narrow more than 20 years of jurisprudence, which he criticized.
Section 230 has drawn bipartisan criticism for allowing social media sites to ignore problems such as illegal drug sales and consumer fraud online. The law was revised in 2018 to address concerns about sex trafficking.
Democrats have their own issues with the statute, including whether it does enough to encourage the sites to thwart foreign interference in U.S. elections.
Although Biden has criticized Section 230, his campaign also slammed Trump’s order when it was issued in May.
“It will not be the position of any future Biden administration — or any other administration that is aware of our basic constitutional structure — that the First Amendment means private companies must provide a venue for, and amplification of, the president’s falsehoods, lest they become the subject of coordinated retaliation by the federal government,” spokesman Bill Russo said at the time.
Republicans, who have long said they’re not fully represented on social media, praised Pai’s move. In the House, three representatives — Cathy McMorris Rodgers of Washington State, Bob Latta of Ohio and Greg Walden of Oregon — put out a statement highlighting “Big Tech Censorship.”
“Time and time again we’ve seen big tech companies refuse to be transparent about their practices and too often unfairly censor right of center voices. This must stop,” said the three lawmakers, who are top Republicans on the House Energy & Commerce Committee, which oversees technology policy.
A Facebook spokesman declined to comment. A Twitter spokesman referred to the company’s statement following Trump’s request for the rulemaking, in which it called the move “a reactionary and politicized approach to a landmark law” and threat to “the future of online speech.”
Under the U.S. Constitution’s First Amendment, private companies get to “enforce rules for acceptable content on their services,” said Elizabeth Banker, deputy general counsel for the Internet Association, a trade group that counts Facebook, Google and Twitter as members. A change to the constitutional guarantees “is clearly beyond the FCC’s reach.”
Gigi Sohn, a former FCC Democratic aide, said the FCC’s move, and its timing, was designed to influence the election. “They’re working the referee” by seeking to influence the platforms ahead of the election, she said.
The first hurdle for Pai’s proposal is getting it through the FCC itself. Republicans hold three seats on the five-member panel but one of them, Michael O’Rielly, had his nomination for another term abruptly withdrawn by the White House when he objected to Trump’s order on Section 230.
His designated replacement, telecommunications official Nathan Simington, is believed to favor reining in Section 230. Trump, in a tweet last week, said “Republicans need to get smart and confirm Nate Simington to the FCC ASAP!”
The Senate Commerce Committee announced Thursday that it would hold a Nov. 10 confirmation hearing for Simington. If approved by the committee he would need a vote of the full chamber.
O’Rielly remains on the commission in the meantime, and can serve until year’s end or until a replacement arrives. If confirmed by the Senate, Simington could take O’Rielly’s seat and begin voting immediately.