WASHINGTON D.C. — Yesterday, TechFreedom filed reply 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.” Here is the executive summary of our reply comments:
The initial comments filed in this docket underscore the fundamental flaws in NTIA’s Petition. To start, the FCC has no authority to implement the Petition. No commenter supporting the Petition did anything to substantiate NTIA’s claims of authority beyond merely repeating them. In particular, none explained how the FCC can apply Section 201(b) to make rules governing non-common carrier services such as social media when the text of 201(b) clearly applies only to common carriers. Indeed, the debate that has raged since 2010 over reclassifying Broadband Internet Access Service as a common carrier service is most fundamentally about whether BIAS should be reclassified so that the FCC could invoke Section 201(b). It would appear either that no one at NTIA were aware of this debate, or of consistent Republican opposition at the FCC and in Congress to the FCC’s broad claims of power to regulate Internet services — or that no one cared about the astounding inconsistency of going from “Restoring Internet Freedom” to “Regulating the Internet.”
Multiple commenters support NTIA’s petition on the theory that it will allow state attorneys general, the FTC, or private parties to sue social media providers for breach of contract or deception under consumer protection law by promising neutrality and failing to deliver. None of these commenters explain how such suits could proceed under contract law or consumer protection law, given that both require specificity in claims far beyond what any social media service promises today, as well as some means of objectively verifying the falsity of claims compared to a company’s practices — requirements ultimately grounded in the First Amendment, as we explained in detail in our comments.
Moreover, no commenter has explained the NTIA’s flagrant misrepresentation of what the Supreme Court said in Packingham: social media are not public fora, and “merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.” Nor did any commenter explain how the NTIA Petition would not violate the unconstitutional conditions doctrine. Only one other commenter even discussed the doctrine in their comments — and they agreed with us: the government may not condition the receipt of a benefit, including legal immunity, on the surrender of First Amendment rights, including the right to decide what third-party content to host.
While some commenters did argue that the FCC should impose disclosure mandates on social media providers modeled on the FCC’s mandates for BIAS, these comparisons are clearly apples and oranges. BIAS providers, by definition, do not exercise editorial discretion over the content received by users — while the entire point of this debate is that social media providers do.
NTIA’s Petition, if granted, would not only violate the First Amendment; it would transform the Internet into something that looks a lot like Gab, the “alternative” “free speech” platform — where racism, antisemitism, and the most vicious kinds of “lawful but awful” content abounds. FoxNews.com bans “hateful; or discriminatory” comments; The Daily Caller bans “racially, ethnically, or otherwise offensive language.” Even Infowars bans comments that are “hateful, racially or ethnically objectionable.” Gateway Pundit bars users from posting content that is “hateful, racist, or otherwise objectionable.” Evidently, “otherwise objectionable” is an appropriate reservation of editorial discretion for Gateway Pundit —why would it be inappropriate for any other website? Breitbart claims equivalently vast discretion to remove content, or block users who post it, merely because that content is “inappropriate.”
NTIA would punish all these sites for attempting to disassociate themselves from content they find repugnant. Even Parler, which has rapidly eclipsed Gab, and attracted the participation of leading Republicans and conservative influencers, claims vastly more discretion to remove objectionable content than NTIA would allow — yet, in practice, seems to have removed only just enough of the most extremely “lawful but awful” content to make the site palatable to the major influencers.
Anyone who wants to understand what the Internet would look like if NTIA’s Petition were granted should spend some time using Gab — and then ask themselves whether they really want that to be the only option available for themselves and their children. Even a careful look at Parler should make them think twice about whether they want to use Section 230 to prevent websites — all websites, not just “Big Tech” — from removing the kind of noxious content that even leading conservative media sites ban in their comment sections.
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See more of our work on free speech and Section 230 on our website, including:
- 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