WASHINGTON D.C. – Today, the National Telecommunications and Information Agency (“NTIA”) filed a Petition for Rulemaking with the FCC seeking to implement the White House’s Executive Order entitled “Preventing Online Censorship.” The Petition asks the FCC to write rules to require websites to prove that their content moderation was conducted with “good faith,” and to define that term to include political neutrality. We’ve already explained why the Executive Order is unconstitutional.

It’s a shame that the FCC is being put in this position: legally, the FCC doesn’t have to dignify this Petition with a response, but the political pressure to put it out for comment will be overwhelming,” said James E. Dunstan, TechFreedom General Counsel. “The Petition is a monumental waste of the FCC’s time: it garbles both statutory interpretation and constitutional law. Both the Executive Order and Petition seek to have the FCC collapse the three clearly distinct immunities in Section 230, and overlay a ‘good faith’ proof requirement that exists in only a narrow part of the statute. Applying a ‘good faith’ standard (whatever that means ) to difficult content moderation decisions would eviscerate the critical function of Section 230: The law was written (by a Republican congressman) to shield websites not only against ultimate liability but also against being sued for content uploaded by third parties. Section 230 works because it allows websites to resolve such lawsuits via a motion to dismiss, without having to go through discovery, a motion for summary judgment, and a trial. Under the Administration’s reinterpretation of the law, websites would face what one leading Republican judge called ‘death by ten thousand duck-bites.’ Ironically, only the largest social media sites could possibly survive this crushing liability.”

Section 230, the law that has made today’s Internet possible, is under attack,” continued Dunstan. “There’s no way for the FCC, the FTC, or any court to decide what constitutes ‘good faith’ content moderation, because it would require the government to examine the content of Internet speech, which the First Amendment clearly forbids. This Petition is just as unconstitutional as Free Press’s demand that the FCC investigate broadcast licensees for airing comments about the President they allege are false. Chairman Pai knows it and has been a strong defender of the First Amendment. Hopefully, he and other Commissioners will recognize this proposal as sheer constitutional folly and dismiss it immediately.”

For a more detailed legal analysis, read TechFreedom’s analysis of legislation proposed by Sen. Josh Hawley, which raises essentially the same constitutional issues as the NTIA petition.

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

  • 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