Reactions to Chairman Pai's Announcement on Section 230
On Oct 15, Federal Communications Commission Chairman Ajit Pai announced that he will move forward with clarifying the meaning of Section 230.
FCC Commissioner Brendan Carr: “Section 230 reform is long overdue. The status quo isn’t working. That is why I have called for the FCC to take action and do our part to rein in Big Tech. Chairman Pai is right that the FCC has legal authority to interpret Section 230, and I applaud his leadership in announcing the FCC will move forward with clarifying the statute. Section 230 confers a unique set of benefits on social media companies and other ‘providers of interactive computer services.’ It gives them special protections that go beyond the First Amendment rights that protect everyone in this country. Congress passed this provision back in the 1990s to address the limited content moderation practices employed by Internet sites like the then-popular Prodigy and CompuServe messaging boards. Flash forward over 20 years, and the content moderation practices employed by the Internet giants of today bear little resemblance to the activities Congress had in mind when it passed Section 230. And a handful of court cases have drastically expanded the scope of Section 230, adding immunities found nowhere in the statutory text, as Justice Thomas explained in a statement just this week. Moving forward at the FCC will bring much-needed clarity to Section 230 and close the loopholes that Big Tech has exploited. These reforms will promote ‘a forum for a true diversity of political discourse,’ as Congress envisioned when it passed Section 230, without limiting the First Amendment rights of any speaker. I commend Chairman Pai for his leadership on this issue, and I look forward to the FCC taking expeditious action.”
FCC Commissioner Jessica Rosenworcel: “The timing of this effort is absurd. The FCC has no business being the President’s speech police.”
FCC Commissioner Geoffrey Starks: “We’re in the midst of an election. The president’s Executive Order on Section 230 was politically motivated and legally unsound. The FCC shouldn’t do the president’s bidding here.”
House Commerce Chairman Frank Pallone, Jr. (D-NJ) and Communications Subcommittee Chairman Mike Doyle (D-PA): “Chairman Pai’s decision to start a Section 230 rulemaking is a blatant attempt to help a flailing President Trump. The timing and hurried nature of this decision makes clear it’s being done to influence social media companies’ behavior leading up to an election, and it is shocking to watch this supposedly independent regulatory agency jump at the opportunity to become a political appendage of President Trump’s campaign. From the start, Republicans have used the Section 230 debate to threaten social media companies when they remove or flag disinformation and extremism on their platforms – all because of some baseless fantasy grievance that the internet is biased against conservative views. Their approach translates into a defense of online extremism and foreign countries’ disinformation campaigns, which is a baffling and dangerous position for lawmakers to take. Section 230 reform that creates a structure for healthier online ecosystems is needed and we are committed to seeing it done – but the FCC’s rush to push President Trump’s agenda weeks before Election Day should be seen for the reckless and politically-motivated stunt that it is.”
House Commerce Ranking Member Greg Walden (D-OR), Communications Subcommittee Ranking Member Bob Latta (R-OH), and Consumer Protection Subcommittee Ranking Member Cathy McMorris Rodgers (R-WA): “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. Twitter, Facebook, and others should take a long, hard look at the policies that determine what they suppress on their platforms. Why is the New York Post story problematic, but stories from other outlets containing leaked, hacked, or classified information okay? At what point do these platforms take on the responsibility of publishers, and should they be treated as such? Should Section 230 protections apply to platforms who act as publishers? We’re encouraged to see these questions being raised and look forward to working with key stakeholders, including the FCC, to clarify the intent of a law enacted nearly 25 years ago."
Senator Ron Wyden (D-OR): "The FCC does not have the authority to rewrite the law, and Ajit Pai can't appoint himself commissioner of the speech police."
Benton Senior Fellow and Public Advocate Gigi Sohn: “There’s nothing in Section 230 of the Communications Decency Act that gives the FCC authority either to interpret it or, even more importantly, set rules. In fact, the legislative history is completely to the contrary...This is going to be tied up in litigation forever and a day."
Michael Copps, former FCC chairman and commissioner and currently special adviser to Common Cause: “The chairman’s announcement to move forward with a rulemaking to police speech on social media platforms marks a sad day for the FCC, an independent agency, to be dictated to by Trump on Section 230. Chairman Pai meets himself coming around the corner thinking he can regulate digital platforms despite repealing net neutrality and abdicating the agency’s authority to regulate broadband. By initiating a rulemaking, the FCC is doing the bidding of the President – to put political pressure on social media platforms that would prevent them from taking any action to correct blatant disinformation he spreads online, particularly content that would suppress the votes of American citizens. It’s no surprise that the chairman’s announcement comes weeks before the election when social media platforms are taking more steps to curb the spread of election disinformation."
John Bergmayer, Legal Director at Public Knowledge: “The FCC does not have authority to ‘clarify’ Section 230 — it is not a statute that Congress gave the agency any authority over whatsoever. Additionally, if Chairman Pai’s planned rulemaking is at all informed by the NTIA petition, it is likely to be fatally flawed in other ways, as the NTIA insists on an interpretation of the statute that is contradicted by the plain meaning of the words that Congress enacted, and, in fact, that contradicts itself. There is room for a good-faith debate on how to reform Section 230 to ensure that platforms take more responsibility for the content they host, and the harms they magnify. Like the DOJ’s recent proposal, however, the NTIA’s petition to the FCC is not designed to address those harms, but to further the spread of harmful content and to limit the ability of platforms to exercise editorial discretion. It is particularly ironic that the Chairman would initiate this rulemaking while simultaneously affirming his ‘Restoring Internet Freedom Order,’ which repealed net neutrality protections for consumers under the theory that the FCC lacks jurisdiction over entities the Chairman now claims the Commission can regulate. Section 230, to be clear, applies not only to major social media platforms, but also any site that hosts user content such as news publications with comment sections, infrastructure providers like broadband providers, and users of these services. While the details of Chairman Pai’s thinking on this issue are unclear, the FCC, an independent agency, should not follow the administration’s direction in this matter.”
Free Press Senior Policy Counsel Gaurav Laroia: "With this announcement, the Pai Doctrine gets clearer and clearer. He declares himself a champion of the First Amendment and claims he doesn’t want heavy-handed internet regulation — then pushes policies that stifle free expression online. In this case, the Pai Doctrine would expose websites to liability if they remove any of President Trump’s lies or provide any context to such disinformation. The FCC has no authority to issue binding pronouncements on Section 230. Its effort to make the platforms liable for their editorializing or content takedowns makes no sense. No one, from Trump on down, has the right to be carried on Facebook, Twitter or any other website — and those websites have a First Amendment right to disassociate themselves from speech they disapprove of. And without underlying unlawfulness there’s nothing for Trump or anyone else to sue over if Twitter takes down a post. The real goal of the Trump FCC here is to engage in political retaliation against protected speech and editorializing. Surely President Trump and Chairman Pai can’t suggest that Twitter should be liable for carrying the president’s lies. The intent instead is to force platforms to carry these lies, and open them up to lawsuits for everything else their users post if the platforms dare to refuse this kind of presidential commandeering. The FCC is proposing nothing less than a Fairness Doctrine for Facebook, and a must-carry regime for fraudsters, propagandists, bigots, charlatans and those in power who inspire, provoke and promote them. It’s no coincidence that this charade is happening during the final weeks of the 2020 presidential election. The Trump administration and its FCC allies are trying to bully and intimidate social-media companies into rolling back their content-moderation efforts for election-related disinformation. This FCC proceeding is a hypocritical and cynical enterprise that threatens online diversity, our fundamental freedoms and the rule of law.”
Evan Greer, deputy director of Fight for the Future: "Ajit Pai’s plan to move forward with the Trump administration’s deeply silly executive order would be laughable if it weren’t so dangerous. This is the guy who repealed net neutrality because he claimed basic rules that prevented ISPs from blocking websites and apps were "burdensome government regulations." Now he wants to turn the Federal government into online speech police, dictating what social media companies can and can’t allow? Trump tweeting in all caps to REPEAL SECTION 230 makes about as much sense as someone organizing a protest to repeal the First Amendment. If he got his way, websites would become legally responsible for the opinions, videos, and memes posted by their users. Social media platforms would likely engage in mass censorship and banning of accounts rather than open themselves up to lawsuits for hosting controversial opinions –– Trump’s accounts would surely be among the first to go. It would strip users of key protections too. Who’s excited to get sued for retweeting something? The reality is that lawmakers from across the political spectrum are deeply misinformed about how Section 230 actually works. It feels like every week there’s a new misguided proposal in Congress. But repealing Section 230 won’t do anything to hold Big Tech companies accountable or address the harms done by their data harvesting business models. And it won’t do anything to address concerns around biased moderation or the silencing of marginalized voices. Repealing Section 230 would just make all the bad parts of the Internet worse while burning the good parts to the ground. It’s time to put this bad idea to rest and focus on putting actual policies in place to protect free speech and rein in Big Tech abuses, like enacting strong Federal data privacy legislation, restoring net neutrality, banning micro-targeting and harmful forms of algorithmic amplification, and breaking up monopolies." Unfortunately, the Trump administration is not alone in its quest to eviscerate Section 230. Vice President Joe Biden has also called to "revoke" the protections, and there are a slew of terrible bills in Congress from both Democrats and Republicans attacking this legislation. Fight for the Future has been leading the charge against some of the worst proposals, including the EARN IT Act, the companion of which was recently introduced in the House. Fight for the Future is one of the few civil society groups working to defend Section 230 for human rights and free expression reasons, while organizing for actual policy solutions to the very real harms caused by Big Tech business models."
Elizabeth Banker, deputy general counsel for the Internet Association: ”The First Amendment protects every private enterprise’s ability to set and enforce rules for acceptable content on their services." A change to the constitutional guarantees found there “is clearly beyond the FCC’s reach.”
Free State Foundation president Randolph May: “It looks like FCC chairman Ajit Pai agrees with the comments that the Free State Foundation submitted to the Commission contending that the agency possesses the authority to clarify the meaning of some of Section 230’s terms and that it may be able to do so consistent with the First Amendment. In our comments, we emphasized that there is a difference between the FCC providing its interpretation as to the meaning of Section 230’s provisions, for whatever weight the courts then may decide to give to the agency’s interpretation, and the FCC taking enforcement actions pursuant to Section 230. And we emphasized that any action that has the effect of narrowing Section 230’s broad grant of immunity doesn’t necessarily violate the First Amendment. There is an important distinction, for purposes of the First Amendment application, between protecting a content provider’s, say Twitter’s, right to decide what to carry or delete, and granting such content provider immunity from suits for all of its content moderation decisions. I’m pleased, but not surprised, that [chairman] Pai appreciates these points regarding the First Amendment and the Commission’s legal authority."
Chip Pickering, CEO of INCOMPAS: “Congress, not the FCC, has authority over Section 230 and has been extremely active in that conversation. While we don’t doubt the intentions of chairman Pai and others, there is simply not a sufficient record of support at the FCC that warrants Commission involvement at this time. Even the original authors of Section 230 said the FCC has no role to play in the law’s interpretation and have warned against the risks to small businesses and start-ups online.”
Computer & Communications Industry Association president Matt Schruers: “Retaliating against companies enforcing their Terms of Service by initiating regulatory proceedings is not how democracies are supposed to work. There is broad consensus on the importance of moderating online content, and most would agree it is particularly critical amid an election and a pandemic. Being a political figure isn’t a free pass to break digital services’ content rules.”
Reactions Carr Applauds Chairman Pai's Announcement On Section 230 FCC plans to move forward with Trump’s “Censor the Internet” executive order to blow up Section 230 (Fight for the Future) FCC Chairman Moves to Regulate Internet Sites and Social Media That Refuse to Amplify Trump Propaganda and Lies (Free Press) Public Knowledge Criticizes FCC Chairman Pai’s Claimed Authority to Rewrite Section 230 FCC to move forward with considering executive order targeting tech's liability shield (The Hill) FCC Acts as Trump Intensifies Call to Dilute Social Media Shield (Bloomberg) D.C. Weighs in on FCC Section 230 Review (Multichannel News) What the FCC can and can’t do to Section 230 (Vox) Pallone & Doyle on FCC Initiating Section 230 Rulemaking