Democratic FCC Commissioner Geoffrey Starks says the FCC is ultimately in charge of taking action against online companies, not President Trump.
Last month, Twitter fact-checked two of Trump’s tweets. The president promptly accused the platform of treating him unfairly and interfering with the 2020 presidential election.
Trump said he would sign an executive order targeting Section 230 of the Communications Decency Act, which acts as a liability shield for online companies. Without Section 230, online companies could face lawsuits over content posted by users.
In an interview with the Information Technology and Innovation Foundation, a left-leaning think tank, Starks said the FCC has looked over Trump’s executive order and has issues with it — namely, the fact that Trump isn’t legally permitted to make such a decision.
“The executive order definitely gets one thing right, and that is that the president cannot instruct the FCC to do this or anything else,” he said. “We’re an independent agency.”
Debate belongs to Congress
Starks said there are policymakers who believe it’s time for Section 230 to be updated, but it’s not the president’s place to make that call.
“The broader debate about section 230 long predates President Trump’s conflict with Twitter in particular, and there are so many smart people who believe the law here should be updated,” he said. “But ultimately that debate belongs to Congress.”
“That the president may find it more expedient to influence a five-member commission than a 538-member Congress is not a sufficient reason, much less a good one, to circumvent the constitutional function of our democratically elected representatives.”
“There are good reasons for the FCC to stay out of this debate,” he added. “The decision is ours alone.”
Section 230 in question
Trump’s disagreement with Twitter has given way to several developments on the issue. Earlier this month, a group of Republican senators called on the FCC to examine the proposed order closely and “clearly define” the protections social media companies would receive.
“This request was made in light of recent troubling activities by social media companies, including partisan attempts to silence political speech and efforts to silence critics of the Chinese Communist Party,” the senators wrote in the letter.
This week, the Justice Department outlined its own plan for updating Section 230. The Department said its proposed changes would go into effect when platforms “purposefully promote, solicit, or facilitate the posting of material that the platform knew or had reason to believe would violate federal criminal law.” However, like Trump, the Justice Department doesn’t have the authority to change or create responsibilities for the FCC.
Starks said Trump’s plan also doesn’t account for the legal limitations of the FCC.
“The first amendment allows social media companies to censor content freely in ways the government never could, and it prohibits the government from retaliating against them for that speech,” he said. “So much — so much — of what the president proposes here seems inconsistent with those core principles, making an FCC rulemaking even less desirable.”
“The worst case scenario, the one that burdens the proper functioning of our democracy, would be to allow the laxity here to bestow some type of credibility on the executive order, one that threatens certainly a new regulatory regime upon internet service providers with no credible legal support,” he stated.