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Trump Social Media Liability Order Opens Partisan Divide at FCC

May 28, 2020, 10:56 PM

The Federal Communications Commission split along party lines on President Donald Trump’s social media executive order, previewing a potential battle to come as the agency weighs action.

Commissioners started reacting to the order before Trump signed it Thursday afternoon. Democratic Commissioner Jessica Rosenworcel said Trump wants to turn the FCC into “speech police.” Republican Commissioner Mike O’Rielly said he’s troubled that “voices are stifled by liberal tech leaders.”

The contrasting positions show the challenge the FCC faces as it decides whether to move forward—or not—with the executive order Trump signed Thursday. The agency lacks statutory authority to take the sort of action Trump favors, attorneys say, yet commissioners face pressure to do something.

“Because this comes directly from the president, this obviously creates a lot of pressure on the FCC to implement this suggestion,” Devin Watkins, an attorney at the Competitive Enterprise Institute, said.

Trump ordered the Department of Commerce to petition the FCC to consider narrowing liability protections for social media platforms such as Twitter Inc., which the president has long claimed are biased against him.

FCC Chairman Ajit Pai, who controls the agency’s agenda, said in a statement that the agency will “carefully review any petition for rulemaking filed by the Department of Commerce.”

“This debate is an important one,” Pai added.

Under the order, the Commerce Department is to ask the FCC to review Section 230 of the Communications Decency Act, which protects the platforms from liability when they act in “good faith” to take down or censor inappropriate user posts.

Trump wants the FCC to clarify what constitutes “good faith,” which the law doesn’t define. The clarification potentially could open the door for lawsuits against the companies.

Lack of Authority

Telecom attorneys said the FCC could issue regulations to clarify the scope of Section 230 but that the agency lacks power to enforce them on its own.

“The FCC has no authority to enforce Section 230, so any interpretation it might issue will have no legal effect,” Andrew Jay Schwartzman, senior counselor at the Benton Institute for Broadband & Society, said in a statement.

GOP Commissioner Brendan Carr said in a television interview with Yahoo! News that “it makes sense” to let the public weigh in on the issue. “Existing law has always said that if you engage in bad faith take downs, you don’t get those bonus protections,” he said.

O’Rielly, in a Twitter post, said that while he’s troubled with liberal tech leaders stifling voices, he’s “extremely dedicated to First Amendment which governs much here.”

Democrat Rosenworcel said in her statement that “an Executive Order that would turn the Federal Communications Commission into the President’s speech police is not the answer.”

Democratic Commissioner Geoffrey Starks said in a statement that “the First Amendment and Section 230 remain the law of the land and control here.”

Public Knowledge Chief Executive Officer Chris Lewis said he’s concerned the FCC could abandon “any pretense” of being independent if it were to act under the order.

“If the FCC were to respond to the President’s request, not only would it be acting without any statutory authority and contradicting its own recent holdings, it would be acting unconstitutionally,” Lewis said in a statement.

To contact the reporter on this story: Jon Reid in Washington at jreid@bloomberglaw.com

To contact the editor responsible for this story: Keith Perine at kperine@bloomberglaw.com

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