With a stroke of his pen, President Donald Trump asked the Federal Communications Commission to regulate Facebook, Twitter and other social media companies. That would be a new task for the independent agency, and it’s unclear if its Republican leadership will take on the role. After all, the agency repealed net neutrality protections in 2017 so that it wouldn’t have to regulate broadband companies, like Comcast and Verizon.
Trump made the request Thursday, when he signed an executive order designed to strip legal liability protections that social media companies currently have for content posted by users. The order followed Twitter’s decision to slap labels on two Trump tweets about mail-in voting, saying they contained “potentially misleading information.”
The president is asking the FCC to review Section 230 of the Communications Decency Act, the law that gives social media companies their legal protection. The president wants rules that’ll let the agency investigate complaints that social media companies discriminate against certain speech on their platforms.
Trump’s action comes as both liberals and conservatives complain about how social media companies moderate content on their platforms. Conservatives, led by the president, allege that their speech is being censored by Twitter, Facebook and other social media sites, a claim the companies deny. Liberals say they’re equally troubled by the rampant flow of disinformation, including interference by foreign countries in the 2020 presidential election, and hate speech.
Any role in policing social media will be awkward for the FCC, which has cast itself as anti-regulation under Ajit Pai, its Trump-appointed chairman. It’s unclear if the FCC even has the authority to make calls about whether social media companies play fair. And it’s certain that any FCC action will be challenged in court.
Unsurprisingly, the FCC’s Democrats are breaking from its Republicans. Commissioner Jessica Rosenworcel, a Democrat, said the order “is not the answer,” while Brendan Carr, a Republican, called the executive order “welcome news.” Pai, a Republican, hasn’t tipped his hand, saying, “This debate is an important one” and pledging to review any requests to change rules carefully.
Here’s what you need to know about the FCC’s potential role in regulating social media.
You mentioned Section 230. What’s that and why would the FCC review it?
Section 230 is a provision of the Communications Decency Act, which was passed in 1996. It’s considered the most important law protecting free speech online.
The provision essentially protects companies that host user-created content from lawsuits over posts on their services. The law shields not only internet service providers, like AT&T, Comcast and Verizon, but also social media platforms, like Facebook, Twitter and Google.
Section 230 isn’t blanket protection. There are exceptions for federal crimes or intellectual-property claims. A company could still be held accountable if it knowingly allowed users to post illegal content.
The law provides social media companies with sweeping protections that let them choose how they restrict content and what content they restrict. This means social media platforms can’t be sued for taking down content or leaving it up.
Why did lawmakers think this was a good idea?
By eliminating liability risk, Section 230 has allowed companies to experiment. Without it, Twitter and Facebook almost assuredly wouldn’t exist, at least not as they do now. And it isn’t just big companies that gain from the law. Nonprofits have benefited, too.
“Without Section 230, we’d have no Wikipedia,” said Ernesto Falcon, senior legislative counsel for the Electronic Frontier Foundation, referring to the volunteer-maintained online encyclopedia.
Many experts say the law has allowed the internet to develop into a medium that allows ideas and political discourse to flow freely. Section 230 allowed online communities to experiment with content moderation, Falcon said. Without these protections, companies may not bother with moderation, he says, which would likely lead to even more offensive, false or misleading content online. (We know that’s hard to believe!)
OK. I get it. Section 230 has helped the internet grow. But it has to have some problems, right?
Yes, and some politicians are calling for it to be repealed or altered. Democrats are most concerned about getting big social media companies to take down hate speech, harassment, disinformation and terrorism-related content. Republicans allege the social media companies are censoring conservative viewpoints.
Former Vice President Joe Biden, the presumptive presidential nominee for the Democrats, argued in January that social media companies don’t deserve protection because they knowingly allow false information on their platforms.
In an interview with The New York Times editorial board, Biden called for Section 230 to be “immediately” revoked. “It is propagating falsehoods they know to be false,” Biden said, “and we should be setting standards not unlike the Europeans are doing relative to privacy.”
Meanwhile Republicans, like Sens. Josh Hawley of Missouri and Ted Cruz of Texas, as well as Rep. Paul Gosar of Arizona, have called for changes to the law. They allege that social media companies have been working to silence conservative voices. There’s no evidence to suggest that allegation is true.
What does Trump’s executive order ask the FCC to do?
At the heart of Trump’s executive order is the allegation that social media sites censor conservative viewpoints they disagree with. Trump wants the FCC to establish regulations that clarify the parameters of the good faith effort that Section 230 requires online companies must make when deciding whether to delete or modify content.
Section 230 protects social media platforms and others online from liability for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” This would include deleting posts or putting a label on a post noting that it may be false, even if the post would be protected by the First Amendment against government censorship.
Does the FCC have any authority to make rules limiting Section 230?
Most experts say the FCC would likely be challenged in court if the agency were to impose any rules around Section 230. The law contains no language giving the FCC or other federal agency the authority to make rules that limit what an online company can do. It only addresses questions of who can be sued and on what grounds. So any FCC action would likely be challenged on the grounds the agency was overstepping its authority.
Can the president direct the FCC to take action or make new rules?
No. The FCC is an independent federal agency. Even though commissioners at the agency are appointed by the president, the FCC doesn’t take directives from the executive branch. Instead, it gets its authority from Congress. That means the only way the FCC would be able to make rules limiting or clarifying Section 230 would be for Congress to pass a law giving it that authority.
To be clear, the president’s executive order takes this into consideration. The order is worded carefully to direct the Commerce Department to ask the FCC to consider a petition asking it to make new rules. It doesn’t direct the agency to do it. This means that the FCC could look at the request and simply decline to make rules.
Doesn’t the FCC have authority to make sure that content on TV or radio is fair and balanced? Why can’t it do that for the online world?
Actually, the FCC hasn’t had a so-called “Fairness Doctrine,” which required broadcast license holders to present opposing perspectives of controversial or political issues, since 1987. But even if it did have such a policy for TV and radio, the agency wouldn’t be able to apply the same rules to social media companies, because it has no authority to regulate those companies.
In fact, the current FCC, under the Trump Administration, explicitly cited Section 230, which states Congress’ intent to keep the internet unregulated, as an argument for repealing the Obama-era net neutrality rules that imposed regulation on broadband providers.
It would be very difficult for Pai and the other Republicans on the FCC to argue that the agency should regulate social media companies, when they stripped the agency of its authority to regulate broadband companies like Comcast or Verizon, says Gigi Sohn, a distinguished fellow at the Georgetown Law Institute for Technology Law & Policy.
If it’s such a long shot that the FCC will even make rules, what’s the point of the executive order?
Sohn argues that Trump’s executive order isn’t about getting the FCC to do anything. It’s about intimidation. She says it’s working. Facebook hasn’t flagged any of Trump’s posts for accuracy, and Facebook CEO Mark Zuckerberg has told media outlets the social media giant doesn’t want to be “an arbiter of truth” so it plans to steer clear of the issue.
“It’s not about winning a legal argument on who has the authority to regulate these companies,” Sohn said. “It’s about playing the ref, so Trump can have his way with social media platforms five months before the election.”