Donald Trump’s ridiculous and likely unenforceable executive order demanding the Federal Communications Commission begin punishing internet companies insufficiently subservient to conservatives is drawing skepticism from his own side.
The GOP controls three out of five commissioner slots at the FCC, which Trump’s order in May tasked with reinterpreting Section 230 of the Communications Decency Act. That’s the law that protects internet companies from most liability for user-generated content or moderation decisions. Trump’s May 2020 order demanded the Commerce Department petition the FCC to develop new rules categorizing whether sites like Facebook and Twitter are acting in “good faith” when they delete content or ban users. If firms don’t meet those new standards, according to the order, they could lose their Section 230 immunity. In other words, cater to the White House’s unceasing whining about fictional “SHADOW BANNING” and fact-check modules or else.
Experts, however, told Gizmodo that the order is a partisan stunt that relies on a bullshit reading of Section 230, mangling various sections and petitioning the FCC to act under authority it wasn’t given by Congress. It would also require buy-in from a majority of commissioners for the FCC to undertake any response to the Commerce Department petition beyond thanking them for their input.
One GOP-aligned FCC commissioner, dead-eyed Trump cultist Brendan Carr, has cheered on the order. (Carr is also gunning for Ajit Pai’s job.) But in an interview on C-SPAN last week, per Ars Technica, fellow GOP commissioner Mike O’Rielly said he had “deep reservations” about the whole thing.
O’Rielly told C-SPAN that he would talk with “knowledgeable people” about the order to clarify whether Congress “intentionally gave us authority, or accidentally gave us authority” that would be needed to carry it out. But he also said that as far as he can remember from his time from that era as a staffer in Congress, that just didn’t happen.
“My memory is pretty good on those things,” O’Rielly told C-SPAN. “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.”
O’Rielly added that while he thinks Section 230 might be vague, he does not “believe it’s the right of the agency to read into the statute... authority that is not there” and that his office will be carrying out “due diligence on the statute itself for jurisdictional issues.” He also dodged a question about whether he agrees with Democratic commissioner Jessica Rosenworcel that the order would turn the FCC into Trump’s speech police: “I’m going to do the heavy lifting before making a comment such as that or try and make an assertion such as that. If that were the effect, then I would—I can see her point.”
O’Rielly added that “Section 230 has functioned as intended and therefore has been incredibly beneficial,” conceding to his own side.
Carr, on the other hand, told Fox News that the “far left has hopped from hoax to hoax to hoax to explain how it lost to President Trump at the ballot box,” advancing a baseless conspiracy theory that social media companies have been pressured by the left to systematically censor conservatives. Pai, the FCC’s chair and the third GOP commissioner, has seemingly tried to lay low for the time being and told Reuters it would be inappropriate to “prejudge” whatever petition the Commerce Department eventually delivers to the agency.
The support of all three GOP commissioners would be necessary for the FCC to move forward with Trump’s plan to redefine Section 230 by fiat. But even if they all signed on, the FCC would doubtless face challenges in court over its lack of authority. Tech firms could also sue on First Amendment grounds that they have a right to moderate any way they see fit.
Finally, in the stretch scenario where the FCC accepts the petition and dictates its new understanding of Section 230, courts may not agree in practice that any given tech company has actually forfeited their liability protections and they may see fit to toss out any resulting lawsuits. It’s easy to see, especially during an election season boding poorly for Trump, why the GOP commissioners might opt to avoid all these headaches and instead focus on their ongoing efforts to shred what’s left of net neutrality and handing out goodies to their allies in the telecom industry.
According to Ars Technica, there is also backlash building to a section of the order tasking the Federal Trade Commission with investigating whether the mythical discrimination against conservatives constitutes “unfair or deceptive acts or practices” under the FTC’s jurisdiction.
In a letter to FTC chair Joseph Simons on Monday, U.S. Senators Richard Blumenthal and Jan Schakowsky urged the FTC to “assert its independence from the president to protect its ability to enforce the law.”
“Any diversion of resources to advance the President’s political agenda would erode the independence of the FTC, sabotage future antitrust and privacy cases against Big Tech, and harm the American people as fraudulent activity would go unchecked,” the senators wrote.