The FCC Still Can’t Interpret Section 230

In the waning days of the first Trump Administration, Tom Johnson, then-General Counsel of the Federal Communications Commission, released a memorandum outlining a potential legal theory to allow the FCC to institute a rulemaking to interpret Section 230 of the Communications Decency Act. Although the Biden Administration dropped the matter and Johnson’s theory was never tested in court, President Trump’s new FCC Chairman Brendan Carr has long been a vocal proponent of having the Commission do something about Section 230, and Administration officials are sending strong signals that the Commission will soon attempt to do just that. Last November, the FedSoc Blog published my essay Sauce for the Goose: The FCC Lacks Authority to Interpret Section 230 Post-Loper Bright. In that essay, I argued that because Section 230 does not provide the FCC with any enforcement or other regulatory responsibilities but is instead simply an affirmative defense for civil litigation, the FCC has no authority to issue rules to interpret that statute. I further argued that the Commission’s ability to interpret Section 230 is particularly constrained because the Supreme Court overturned Chevron in Loper Bright Enterprises v. Raimondo last term, holding that statutory interpretation is a task left exclusively to the judiciary and not to unelected bureaucrats. Given the response to my original essay, I think it is worth highlighting some recent developments in the law which bolster my arguments and addressing some pushback.

[Lawrence Spiwak is President, Phoenix Center for Advanced Legal and Economic Public Policy Studies]