WASHINGTON D.C. Today, FCC Chairman Ajit Pai announced that the FCC would move forward with proposing rules requested by the Trump Administration to reinterpret Section 230, the 1996 law that limits when providers and users of Internet services can be sued for the decisions they make about handling content created by others. Pai cites an opinion issued by Justice Thomas earlier this week as evidence of “concern” about how courts have interpreted the law. TechFreedom issued the following statement in response:

Section 230 is the law that made today’s Internet possible. The law has allowed websites to host content created by users without, as the bill’s author, Rep. Chris Cox (R-CA), warned in 1995, “spending vast sums of money trying to define elusive terms that are going to lead to a flood of legal challenges.” Without the broad protections of 230(c)(1) in particular, websites would face “death by ten thousand duck-bites” in the form of massive litigation risks.

When a Democratic FCC Chairman pushed neutrality regulations at the behest of President Obama, Ajit Pai said: “We shouldn’t be a rubber stamp for political decisions made by the White House.” Now Pai’s doing essentially what he lambasted Tom Wheeler for: proposing sweeping “neutrality” rules at a President’s behest based on unprecedented claims of legal authority to regulate Internet services. Only now, “neutrality” isn’t just rhetoric used to excite the base. Republicans are trying to coerce social media companies to change how they exercise their First Amendment rights to gain advantage just weeks before the election. Having been among Pai’s strongest supporters in 2015, we could not be more disappointed.

The Wheeler FCC lost repeatedly in court because Wheeler was all too eager to attempt anything his general counsel told him the agency might get away with. Pai’s legacy could have been finally breaking the FCC of that habit. Pai fought the notion of regulating Internet services as common carriers, yet now he’s embracing NTIA’s startling claims that the FCC can use Section 201(b), the heart of Title II, to regulate even non-common carrier services. When Democrats use this argument for their own ends, Republicans will bitterly regret that Pai embraced this dangerously broad conception of the FCC’s authority.

The overwhelming consensus among commenters was clear: Congress didn’t intend for the FCC to issue rules and any rules the agency might issue will be given no deference by courts. In plowing forward undaunted by concerns about its legal authority or the First Amendment, Pai is committing exactly the kind of administrative overreach that Justices Thomas, Kavanaugh and Gorsuch and other conservative jurists have sought to rein in.

The last line of Pai’s statement illustrates that this is far more about political talking points than legal. Pai implies that newspapers and broadcasters don’t benefit from Section 230, echoing Republican claims that the law is a special subsidy for ‘Big Tech.’ Contrary to Pai’s claims, Section 230 doesn’t protect only big ‘platforms.’ Without Section 230, traditional media could be sued for any comment any user posted on their websites — so they’d likely shut down the comment sections on their sites. Without Section 230, their journalists could be sued merely for retweeting potentially defamatory material. President Trump himself has used Section 230 to dismiss lawsuits based on his retweets.

Relying on Thomas’s opinion as some kind of authority underscores how little legal substance matters in this debate: Thomas’s separate statement spoke for himself alone. None of the other sitting justices joined him. Further, his opinion was not issued in a case where the parties briefed the issues Thomas opined about.

For more analysis, read our comments and reply comments on the NTIA’s petition to the FCC.


See more of our work on free speech and Section 230, including:

  • Our Twitter thread critiquing Justice Thomas’s opinion
  • Our analysis of legislation proposed by Sen. Josh Hawley, which would amend Section 230 to do essentially the same things the NTIA is asking the FCC to do through a rulemaking.
  • Our Twitter thread breaking down the White House EO
  • Our Twitter thread addressing FCC Commissioner Carr’s Interview on the matter
  • Our letter to the Senate Judiciary analyzing the EARN IT Act. PR on the letter.
  • A coalition letter by 27 civil society organizations and 53 academics a set of seven principles to guide conversation about amending Section 230 of the Communications Decency Act of 1996
  • Our statement on Sen. Hawley’s proposed legislation on regulating the Internet
  • Our op-ed “Some conservatives need a First Amendment refresher”
  • Our letter to AG Sessions “DOJ Inquiry re Tech Companies Bias is Misguided”
  • Our blogpost “Reality Check for Trump and Republicans Crying ‘Bias’”!
  • Berin Szóka’s testimony before the House Judiciary Committee on the filtering practices of social media platforms
  • Our statement on the passage of SESTA
  • Our statement on the takedown of Backpage and its implications for Section 230 and recent sex trafficking legislation
  • Tech Policy Podcast #251: SESTA/FOSTA Hurts Victims It Aims to Protect