FCC Chief Aims To Regulate How Websites Handle Users' Speech

Federal Communications Commission Chairman Ajit Pai said Thursday he plans to launch a proceeding to “clarify” a 24-year-old law that protects internet companies from liability for decisions about how to treat content created by users.

Pai's statement comes in response to a Commerce Department petition for new regulations that could link web companies' protections under Section 230 of the Communications Decency Act to the companies' policies for handling posts by users.

Section 230, described as “The Twenty-Six Words That Created the Internet” by law professor Jeff Kosseff, immunizes online publishers from liability for speech by users. Without that protection, Facebook, Twitter, Yelp and YouTube could face endless lawsuits by people who said they were defamed in comments on the platforms.

Section 230 also immunizes companies from lawsuits for removing or placing warning labels on users' speech -- including comments that violate the companies' editorial policies. (Even without Section 230, companies have a First Amendment right to decide what type of speech to ban from its platform. But litigating a First Amendment issue can be more complicated and expensive for companies than securing a dismissal under Section 230.)



Pai said Thursday that his general counsel believes the FCC “has the legal authority to interpret Section 230.”

Numerous others, including Sen. Ron Wyden (D-Oregon) and former Rep. Chris Cox (R-California), who authored the legislation, disagree. Wyden and Cox told the FCC as much last month.

“On one point we can speak ex cathedra, as it were: our intent in writing this law was to keep the FCC out of the business of regulating websites, content moderation policies, and the content of speech on the internet,” they wrote in a filing that urged the FCC to avoid passing regulations for Section 230.

Section 230 has been under intense scrutiny since May, when President Trump ordered the Commerce Department to seek FCC regulations that could limit tech companies' immunity when they restrict or remove users' posts without a "reasoned explanation.”

Trump took that step after Twitter alerted users to dubious claims in two of his tweets.

Trump, like some other Republicans, has repeatedly claimed that tech companies squelch conservative opinions more than liberal viewpoints -- despite an utter lack of evidence to that effect.

As the election has gotten closer the White House's criticism of tech companies has only increased. So far this month, Trump has twice called on lawmakers to repeal Section 230 -- once after Twitter and Facebook took action over his misleading post comparing COVID-19 to the flu, and a second time after the companies moved to restrict the spread of a controversial New York Post article.

Advocacy group Free Press points out that the renewed calls to crack down on social media companies appear aimed at browbeating them into carrying propaganda.

“It’s no coincidence that this charade is happening during the final weeks of the 2020 presidential election,” Free Press senior policy counsel Gaurav Laroia stated. “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.”

It's not clear whether Pai will have the votes to actually pass new rules. Three of the agency's current commissioners have either said or suggested they don't believe the FCC should attempt to regulate social media companies.

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