President Trump has some convincing to do in order to get his social media crackdown through the Federal Communications Commission.
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. With Republican Commissioner Brendan Carr having enthusiastically endorsed Trump’s executive order and Democrats opposed to it, the views of O’Rielly and Chairman Ajit Pai will play a big role in determining the outcome.
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.
Trump’s order calls on the FCC to “expeditiously propose regulations to clarify” Section 230 of the Communications Decency Act in order to limit social media platforms’ legal protections for hosting third-party content when the platforms take down content they consider objectionable. 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.”
Trump has the “right to examine any statute to see if it’s being abused,” O’Rielly said. But that doesn’t mean the FCC has authority to act. “I do not believe it’s the right of the agency to read into the statute authority that is not there,” O’Rielly said. But he noted that the text in US law is sometimes not as “clear as it could be” and that vagueness in the law “provides an opportunity for the commission to act.” That’s one reason O’Rielly gave for his plan to “do due diligence on the statute itself for jurisdictional issues.”
Besides the question of whether the FCC has jurisdiction, the FCC must also consider First Amendment free speech protections, O’Rielly said. The commission would have to consider what any action means “for the future of the Internet and communications, digital communications, and IP traffic,” he said.
Pai won’t “prejudge” petition
Pai declined comment last week, saying it would not be appropriate to “prejudge a petition that I haven’t seen,” according to Reuters. As part of the process outlined in Trump’s order, the National Telecommunications and Information Administration (NTIA) will have to file a petition for rulemaking asking the FCC to clarify Section 230.
FCC Democrat Jessica Rosenworcel has said that “an executive order that would turn the Federal Communications Commission into the President’s speech police is not the answer.”
O’Rielly was asked whether he agrees with Rosenworcel in his C-SPAN interview. While he agreed that the FCC should not be the president’s speech police, he said he doesn’t know “if this [executive order] does that.
“I’m going to do the heavy lifting before making a comment such as that or try and make an assertion such as that,” O’Rielly said. “If that were the effect, then I would—I can see her point. I don’t think that we can make that assertion now. I don’t think that anyone can rightfully, especially since we don’t have a recommendation from the administration through NTIA, of what the petition would look like.”
When the petition is filed, O’Rielly said he will “advocate to the chairman… that we put it out for public notice and let all comers take shots.” After seeking public comment, “we can see if there’s something we should do or not do and we’ll explore all the thorny issues that are so important in our democracy.” O’Rielly said be believes that “section 230 has functioned as intended and therefore has been incredibly beneficial.” However, he said it’s fair to explore whether Congress or the FCC should “put guardrails on [Section 230] and narrow it to make it more functional and therefore not provide some of the wide open opportunity and some of the abuses we may be seeing in the marketplace.”
Conservatives allege Twitter bias
Carr hasn’t been shy in his support of Trump’s executive order, calling it “really welcome news” and echoing Trump’s claims that Twitter is biased against conservatives. Carr accused Twitter of “punishing speakers based on whether it approves or disapproves of their politics.”
O’Rielly said on C-SPAN that he is also “concerned, as a conservative, that my fellow conservatives have been stifled or their words are being limited on certain tech platforms.” But he added that this “doesn’t mean it’s not happening on the other side of the aisle as well.” For conservatives, “it’s something fresh in their mind and happening pretty regularly from my conversations with folks, so that’s problematic,” O’Rielly said. “What we do about that is a different story.”
Sen. Marco Rubio (R-Fla.) and three other Republican US senators last week urged the FCC to “take a fresh look at Section 230” to “clearly define the criteria” under which online platforms receive legal protections for hosting third-party content. “The unequal treatment of different points of view across social media presents a mounting threat to free speech. [Trump’s] executive order is an important step in addressing this form of censorship,” they wrote.
Democrats oppose Trump order
Sen. Ron Wyden (D-Ore.), who co-wrote Section 230, wrote that the executive order is part of what Wyden called Trump’s “all-out war on the press and nearly anyone who tries to hold him accountable or point out his lies, including Twitter.”
Trump also wants action from the Federal Trade Commission. As we’ve written, Trump’s executive order would add user complaints about supposed bias or censorship at social networks into the pile of “deceptive claims” over which the FTC has authority. The Trump order said that “unfair or deceptive acts or practices” under the FTC’s jurisdiction may include online platforms “restrict[ing] speech in ways that do not align with those entities’ public representations about those practices.”
US Sen. Richard Blumenthal (D-Conn.) and US Rep. Jan Schakowsky (D-Ill.) wrote to FTC Chairman Joseph Simons today, urging the FTC to “assert its independence from the president to protect its ability to enforce the law.”
“The Federal Trade Commission is not an arm of the presidency, and it cannot be pressed into service to retaliate against Donald Trump’s political rivals or to stifle critical speech,” the Democratic lawmakers wrote.