Zeroing in on a provision of U.S. communications law that Donald Trump has repeatedly called to be nixed, FCC Chairman Ajit Pai on Thursday said he believes the telecom agency has the legal authority to regulate social-media companies.
“Social media companies have a First Amendment right to free speech,” Pai, a Trump appointee, said in a statement. “But they do not have a First Amendment right to a special immunity denied to other media outlets, such as newspapers and broadcasters.”
Pai said he was initiating an official FCC rulemaking proceeding seeking to “clarify” how Section 230 of the Communications Decency Act applies to social media companies. As currently interpreted, Section 230 grants internet companies broad legal protections for user-posted content on their services.
Trump, who has grown increasingly irritated with Facebook and Twitter’s moves to fact-check and block his posts, issued an executive order in May seeking to rescind Section 230 protections for social networks if they “censor” speech. He has routinely asserted that the internet companies exhibit an anti-conservative bias, something echoed by other GOP politicians and right-wing commentators.
Pai, in his comments Thursday, said, “Many advance an overly broad interpretation that in some cases shields social media companies from consumer protection laws in a way that has no basis in the text of Section 230.” According to the FCC chief, the commission’s general counsel “has informed me that 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.”
Democratic FCC Commissioner Jessica Rosenworcel, appointed by President Obama, issued a terse statement in response to Pai’s announcement: “The timing of this effort is absurd. The FCC has no business being the President’s speech police.”
The ACLU also slammed Pai’s move to regulate social media companies under Section 230.
“The FCC cannot rewrite acts of Congress to suit its whims,” Kate Ruane, senior legislative counsel at the ACLU, said in a statement. “Section 230 is critical to protecting free speech online and the FCC has no authority to change it, especially not in ways that will undermine free expression. Also, the FCC can’t and shouldn’t dictate content moderation practices. The First Amendment protects us from government control over what we can tweet, post, and say online — this includes respecting the editorial decisions of the platforms themselves.”
Pai’s rulemaking proceeding about Section 230 could die on the vine, if Joe Biden defeats Trump in the presidential election next month and appoints a new FCC chair. That said, Biden has himself called for repealing the protections Section 230 affords social media platforms.
This week, the topic of Section 230 protections roared to the fore with a vengeance after Facebook and Twitter thwarted the spread of the New York Post’s disputed article about Hunter Biden. The Post story, based on information provided by Rudy Giuliani that was harvested from a laptop abandoned in Delaware computer-repair shop, alleged that Hunter influenced his father, Joe Biden, into putting pressure on Ukraine officials to fire a prosecutor probing the energy firm for which Hunter was a board member.
The Senate Judiciary Committee plans to subpoena on Twitter CEO Jack Dorsey next week to testify on Oct. 23 before the committee about why his company blocked users from tweeting or retweeting the New York Post’s stories about Hunter Biden, the Wall Street Journal reported.
Meanwhile, the Senate Commerce Committee has set Oct. 28 — less than a week prior to Election Day — for a hearing on Section 230, with three tech CEOs set to testify: Facebook’s Mark Zuckerberg, Alphabet/Google’s Sundar Pichai and Dorsey.
On Twitter, Trump complained about Facebook and Twitter limiting the Post piece. “So terrible that Facebook and Twitter took down the story of ‘Smoking Gun’ emails related to Sleepy Joe Biden and his son, Hunter, in the @NYPost. It is only the beginning for them. There is nothing worse than a corrupt politician. REPEAL SECTION 230!!!”
Pai noted that there is “bipartisan support in Congress” to reform Section 230 and that the Commerce Department has petitioned the FCC to “clarify ambiguities in section 230.” Last month Attorney General William Barr sent draft legislation to Congress that would limit the protections under Section 230.
Trump’s executive order directed the FCC to create new regulations under Section 230 that would remove the legal liability shield for social networks that “engage in censoring or any political conduct.” The law, as it currently stands, lets internet companies like Facebook, YouTube and Twitter moderate content on their services as they see fit, while protecting them from lawsuits over content shared on them.
The Trump administration has been targeted with at least two lawsuits seeking to block the order on Section 230. One was filed by the Center for Democracy & Technology, which alleged the action is “unlawful and invalid” and violates internet companies’ First Amendment rights. Another suit, also citing the First Amendment, was filed in August by a coalition of advocacy groups who claimed the order is retaliatory and is an attempt to inhibit voters’ right to receive information about the election.