“What you can do and want to do is use your bully pulpit to intimidate companies that moderate content in a way you don’t like,” says Evan Greer, director of Fight for the Future, an advocacy group. digital. “And if you continue to do that, there’s a good chance you’ll run afoul of the First Amendment, which, contrary to popular belief, is what actually protects online speech.” Section 230 protects social media companies from being sued over content that users post on their platforms, while the First Amendment explicitly prohibits the government from interfering with someone’s ability to exercise free speech. Over the summer, the Supreme Court ruled that a company’s moderation decisions are protected by the First Amendment.
As for Section 230, the Supreme Court may have made it difficult for administrative agencies like the FCC to reinterpret it to their liking. Over the summer, the Supreme Court overturned Chevron v. Natural Resources Defense Council (NRDC)a decision that had allowed government agencies to independently interpret their authorities. With Chevron’s deference muted, it could be an uphill battle for the FCC to make its own interpretations of the law.
“Basically, agencies are losing the ability to interpret how they can enforce when the language is vague in the statute,” Lewis says. “The language of Section 230 is actually very short and very simple and does not involve any FCC action.” If Carr decided to issue a rule modifying Section 230, he would likely face legal challenges. Still, Republicans currently control all three branches of government and could rule in favor of the administration or pass new legislation placing the FCC as the main police force in the area.
Trump has tried before to get the FCC to police online speech. In 2020, Trump signed an executive order directing the FCC to begin a rulemaking process to reinterpret when Section 230 would apply to social platforms like Facebook and Instagram. The Center for Democracy and Technology, which receives funding from big tech companies, challenged the order as unconstitutional and said it unfairly punished X, then known as Twitter, “for chilling the constitutionally protected speech of all platforms and individuals on line”.
Months later, FCC General Counsel Tom Johnson published a blog post arguing that the agency has the authority to reinterpret fundamental Internet law. A few days later, then-FCC Chairman Ajit Pai announced that the agency would move forward with a rulemaking process, but no rulemaking was ordered before President Joe Biden’s inauguration, giving Democrats control over agency decisions.