“What he can do, and wants to do, is use his bully platform to bully companies that put out content that way,” says Evan Greer, director of digital rights advocacy group Fight for the Future. Control what he doesn't like.” “And if he continues to do that, he's very likely to run into trouble under the First Amendment, which, contrary to misconception, is the real thing that protects speech online.” Section 230 protects social media companies from being sued over content posted by users on their platforms, while the First Amendment explicitly prohibits the government from interfering with someone's ability to exercise free speech. Over the summer, the Supreme Court ruled that the company's moderation decisions are protected under the First Amendment.
As far as Section 230 is concerned, the Supreme Court has made it more difficult for administrative agencies like the FCC to reinterpret it to their liking. In the summer, the Supreme Court struck back Chevron v. Natural Resources Defense Council (NRDC)A decision that allowed government agencies to freely interpret their authorities. With the Chevron deference muted, it could be an uphill battle for the FCC to form its own interpretation of the law.
“Agencies are basically losing the ability to explain how they can enforce it when the language in the statute is vague,” says Lewis. “The language of Section 230 is actually very short and very straightforward and there is no FCC action associated with it.” If Carr decides to issue a rule revising Section 230, it would likely face legal challenges. Still, Republicans currently control all three branches of government and could either rule in favor of the administration or pass new legislation keeping the FCC as its top cop.
Trump has previously attempted to appoint the FCC to monitor online speech. In 2020, Trump signed an executive order directing the FCC to begin a rule-making process to determine 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, calling it unconstitutional and saying it amounted to “silencing the constitutionally protected speech of all online platforms and individuals.” Twitter was unfairly punished.
Months later, FCC General Counsel Tom Johnson published a blog post arguing that the agency has the authority to reinterpret fundamental Internet law. A few days later, then-FCC Chairman Ajit Pai announced the agency would move forward with the rulemaking process, but no rules were ordered before President Joe Biden's inauguration, giving Democrats control over the agency's decisions.