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“What he can do and wants to do is use his bully pulpit to bully companies that moderate content in a way he doesn’t like,” says Evan Greer, director of Fight for the Future, a digital rights advocacy group. “And if he continues to do that, he’s very likely to run smack into 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 the content users post on their platforms, while the First Amendment explicitly bars the government from interfering in someone’s ability to exercise free speech. Over the summer, the Supreme Court ruled that a company’s moderation decisions are protected under the First Amendment.
As for Section 230, the Supreme Court may have just made it more difficult for administrative agencies like the FCC to reinterpret it to their liking. Over the summer, the Supreme Court overturned Chevron v. Natural Resources Defence Council (NRDC), a decision that had allowed for government agencies to independently interpret their authorities. With the Chevron deference made mute, it could be an uphill battle for the FCC to make its own interpretations of the law.
“Agencies are basically losing the ability to interpret how they can enforce when language is vague in the statute,” says Lewis. “Section 230’s language is actually very short and very straightforward and has no FCC action attached to it.” If Carr decided to issue a rule modifying Section 230, it would likely be met with legal challenges. Still, Republicans currently control all three branches of government and could either rule in the administration’s favor or pass new legislation putting the FCC as the top cop on the beat.
Trump has tried to deputize the FCC into policing online speech before. In 2020, Trump signed an executive order instructing the FCC to begin a rule-making 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, saying that it unfairly punished X, then known as Twitter, “to chill the constitutionally protected speech of all online platforms and individuals.”
Months later, the FCC general counsel Tom Johnson published a blog post arguing that the agency has the authority to reinterpret the foundational internet law. A few days after that, then-FCC chairman Ajit Pai announced that the agency would move forward on a rule-making process, but no rule was ordered before President Joe Biden’s inauguration, giving Democrats control over agency decisions.