“What he can and will do is use his bully pulpit to bully companies that moderate content in a way they don’t like,” says Evan Greer, Fight Director of for the Future, a digital rights advocacy group. “And if he continues to do that, he’s very likely to push back on the First Amendment, which, contrary to misconception, is the real thing that protects online speech.” Section 230 protects social media companies from being sued over content posted by users on their platforms, while the First Amendment expressly prevents the government from interfering with someone’s ability to free speech. Over the summer, the Supreme Court ruled that the company’s moderation decisions are protected under the First Amendment.
As for Section 230, the Supreme Court has made it difficult for regulatory agencies like the FCC to reinterpret it as they see fit. In the summer, the Supreme Court reversed. Chevron v. Natural Resources Defense Council (NRDC)a decision that allowed government agencies to freely interpret their own authorities. With Chevron’s deference muted, it could be an uphill battle for the FCC to make its own interpretations of the law.
“Agencies are essentially losing the ability to interpret how they can enforce when the language in the statute is ambiguous,” says Lewis. “The language of Section 230 is actually very short and very straightforward and there is no FCC action attached to it.” If Carr decides to issue a rule amending Section 230, it will likely face legal challenges. Still, Republicans currently control all three branches of government and can either rule in favor of the administration or pass new legislation with the FCC as the top cop.
Trump has previously tried to appoint the FCC to policing online speech. In 2020, Trump signed an executive order directing the FCC to begin a rulemaking process to reinterpret when Section 230 applies to social platforms such as Facebook and Instagram. Will be. The Center for Democracy and Technology, which receives funding from major tech companies, challenged the ruling as unconstitutional, saying it unfairly punished X, then called Twitter, “all to chill the constitutionally protected speech of online platforms and individuals.”
Months later, FCC General Counsel Tom Johnson published a blog post arguing that the agency had the authority to reinterpret basic Internet law. A few days later, then-FCC Chairman Ajit Pai announced that the agency would move forward with the rulemaking process, but no rules were ordered before President Joe Biden’s inauguration, leaving the agency’s decisions on the line. Democrats were in control.
