The Trump Administration's Section 230 Petition Is Confusing, Embarrassing and Just Plain Wrong on the Law

WASHINGTON — On Monday afternoon, the Trump administration formally asked the Federal Communications Commission to develop new regulations related to the way online platforms like Facebook and Twitter handle third-party content.

The petition for rulemaking stems from an executive order signed in May by President Trump. The petition requires that the FCC craft a rule potentially eliminating protections under Section 230 of the Communications Act for social-media companies. That federal law generally shields companies from legal liability for the material their users post online. In the run-up to the 2020 election, Trump has sought to remove this protection as punishment for any social-media company that fact checks his online posts.

The FCC must now determine how to respond to Trump’s call for FCC oversight and regulation of the internet and the platforms on it, using a law that does not give the FCC any such authority. Should the agency move forward with the administration’s request, it could issue a notice of proposed rulemaking or other such inquiry, and would likely invite public comment.

The Senate Commerce Committee on Tuesday is convening a hearing on Section 230 to consider new legislation to modify the statute and examine the role it plays in promoting and disseminating speech online.

Free Press Senior Counsel Gaurav Laroia made the following statement:

“The Trump administration’s petition to the FCC for a rulemaking on Section 230 is a confused and embarrassing document — awful as a policy prescription and just plain wrong on the law. The government’s lawyers tried, but failed, to make sense of an executive order born from a Trump tantrum about Twitter’s mild and occasional fact checking.

“Though Section 230 has been in the news for months, Trump cannot create by fiat a new ambiguity in that famously short law. He cannot direct the FCC to put words in a statute that weren’t there before, nor suddenly give the agency authority to regulate internet platforms — a power the FCC has never claimed and that even Chairman Ajit Pai rejected in his mistaken repeal of Net Neutrality.

“And now, in a truly brazen act of hypocrisy, the administration that rejected Net Neutrality protections for broadband providers’ carriage of websites and other internet content is attempting to regulate platforms and speakers instead — mandating protections for the president’s speech on other people’s websites.

“While based on legally dubious grounds, the executive order and now this petition still threaten free speech online. They represent another of the president’s attacks on the rule of law, free expression and the rights of people and companies to disagree with him. Trump’s naked attempt to bully Twitter and other companies into allowing his propaganda to go unchallenged would further divide our society and threaten a free and fair election in November.

“And unfortunately, it’s not just President Trump. His sycophants at the FCC like Commissioner Carr, who like to wrap themselves in First Amendment principles, have been enthusiastic cheerleaders for this direct call to turn the FCC into the president’s speech police. They hold up the First Amendment as a prop only when it’s politically convenient to do so. They should join with Commissioners Rosenworcel and Starks, and immediately reject this unconstitutional attempt at censorship.

“Changing Section 230 is the prerogative of Congress, where thoughtful and sincere debates about reform are already taking place among some members. This momentous and potentially dangerous decision can’t be left to a thin-skinned president and his fawning enablers at the FCC.”