Free State: FCC Likely Has Sec. 230 'Clarification' Authority

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Free State Foundation said that Congress is the best place for a needed review of edge provider's Sec. 230 immunity from civil liability for most third party content, but that the FCC likely has the authority to do so as well, and could do so without necessarily running afoul of the First Amendment.

That came in comments on the National Telecommunications & Information Administration petition--mandated by President Trump--that FCC find a way to regulate social media content despite that Sec. 230 protection.

Related: Sec. 230 Is the Protection Section

The free market think tank told the FCC that it is appropriate to review that section of the Communications Act, either by Congress or the FCC, but that Congress is the "more appropriate venue."

Free State said that despite some commenters' opinions to the contrary, it said the FCC "likely" has the authority to "interpret and clarify" the meaning of Sec. 230, in contrast with issuing rules on what edge providers can and can't publish, censor or not censor.

Free State said the authority it is talking about is to clarify interpretations of ambiguous provisions, like 230.

Related: FCC Puts Trump Petition Out for Comment

Free State said many critics of the petition are equating any action to narrow the immunity with government-mandated censorship of protected speech. Whether or not that is sound policy, it told the FCC, altering liability does not necessarily compel websites to say anything or censor anything. It could simply mean they have more incentive to be transparent about how they make their decisions about how they moderate that content, and must defend legal claims they have acted unlawfully.

Free State used the Supreme Court's Brand X decision to buttress its case for FCC authority. In Brand X, the court deferred to the FCC's definition of broadband access, saying that "Congress has delegated to the Commission the authority to execute and enforce the Communications Act and to prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions of the Act."

Free State said it recognizes Brand X is about clarifying statutory definitions rather than terms, but does not see a material difference. It also said that while it recognizes some argue the Sec. 230 terms are not ambiguous, others said they are and that is why there are courts of law.

And if the FCC decided to clarify the meaning of Sec. 230 "otherwise objectionable" term for the content that can be restricted with liability protection, Free State said that would not "necessarily" violate the First Amendment.

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.