Yesterday, TechFreedom filed comments in response to the National Telecommunications and Information Administration’s (NTIA) Petition for Rulemaking, which asks the Federal Communications Commission 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. Here is the executive summary of our comments:
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.
NTIA asks the FCC to turn this law on its head, but the FCC has no authority to reinterpret the statute. The plain language and the legislative history of Section 230 demonstrate that Congress did not intend to grant any regulatory authority to the FCC. Instead, as Rep. Cox declared, Congress did “not wish to have a Federal Computer Commission with an army of bureaucrats regulating the Internet.” Under the statute’s express terms, the “interactive computer service” providers protected by Section 230 are not “information service providers,” nor are they otherwise subject to the FCC’s jurisdiction. Both the courts and the FCC itself have concluded that Section 230 confers no authority on the Commission. The FCC’s lack of delegated authority under Section 230 is demonstrated by the fact that no courts have deferred to the FCC, or awaited its opinion on the meaning of the statute before applying it. NTIA’s principal argument, that Section 201(b) confers plenary rulemaking powers to interpret any provision of the Communications Act, including Section 230, fails: this provision applies only to common carrier services, as this Commission itself argued in repealing the previous Commission’s broad claims of power to regulate Internet services. The FCC also lacks authority to impose disclosure requirements on social media.
NTIA proposes a new, more arbitrary Fairness Doctrine for the Internet. But because social media sites are not public fora, the First Amendment protects the editorial discretion of their operators. The Supreme Court permitted the original Fairness Doctrine only because it denied full first Amendment protection to broadcasters — whereas new media, including social media, enjoys full First Amendment protection.. Conditioning eligibility for Section 230’s protections on the surrender of editorial discretion violates the “unconstitutional condition” doctrine. NTIA’s narrowing of Section 230 effectively seeks to compel social media to carry speech they do not wish to carry and associate themselves with views, persons and organizations they find repugnant — and places upon social media providers themselves the burden of defending the exercise of their editorial judgment. Finally, despite NTIA’s rhetoric about “neutrality,” its proposal will empower the government to punish or reward editorial decisions on the basis of content and viewpoint.
NTIA insists that the representations of fairness or neutrality social media make about their services must be enforced, but it is basic principles of consumer protection and contract law, grounded in the First Amendment, — not Section 230 — that bar such claims. Broad statements about not making decisions for political reasons simply are not actionable, and the First Amendment does not permit the government to compel more “particular” promises. The disclosure requirements the FCC has imposed on Broadband Internet Access Service providers are utterly unlike those NTIA proposes for social media: by definition, BIAS services do not exercise editorial discretion, while social media services do. Enforcing BIAS providers’ promises of “net neutrality” is nothing like second-guessing how social media provide “edited services.” Only in narrow circumstances will the First Amendment permit suit against media providers based on discrepancies between clear and specific representations about their editorial practices and those practices.
NTIA’s statutory interpretations would turn Section 230 on its head, placing a heavy burden on websites to defend their exercise of editorial discretion each time they are sued for content moderation decisions. Courts have correctly interpreted 230(c)(1) to protect broadly the exercise of editorial discretion. NTIA is simply mistaken that this renders 230(c)(2)(a) superfluous: it protects content moderation decisions even when providers responsible for the creation of content, and it protects against other kinds of claims. NTIA would transform 230(c)(2) into the basis for micromanaging how social media operate. Similarly, by redefining which services are eligible for the 230(c)(1) immunity, NTIA would create exactly the kind of censorship regime Section 230 was intended to prevent.
The FCC should dismiss this petition for lack of authority to implement it, and because it violates the most basic precepts of the First Amendment. Evaluating the fairness of media, both offline and online is, as a Republican FTC Chairman eloquently put it, “is a task the First Amendment leaves to the American people, not a government agency.” If consumers believe bias exists, it must be remedied through the usual tools of the media marketplace: consumers must vote with their feet and their dollars.
- 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’”!
- President 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