Trump’s 230 Executive Order and FCC Inside Baseball

A colleague asked me offline, in reference to the White House’s Executive Order attempting to retaliate against Twitter for flagging misinformation in Trump’s tweets:

[W]hat are your thoughts about whether the FCC has any authority to issue Section 230 regulations?

Barrels of ink have been spilled on the broader context of the Order itself, so I won’t retread the basics. Instead, I want to dig in a bit on the inside baseball of what might happen if the FCC actually tries to implement the provisions the Order that attempt to have the Commission:

expeditiously propose regulations to clarify:

(i) the interaction between subparagraphs (c)(1) and (c)(2) of section 230, in particular to clarify and determine the circumstances under which a provider of an interactive computer service that restricts access to content in a manner not specifically protected by subparagraph (c)(2)(A) may also not be able to claim protection under subparagraph (c)(1), which merely states that a provider shall not be treated as a publisher or speaker for making third-party content available and does not address the provider’s responsibility for its own editorial decisions;

(ii)  the conditions under which an action restricting access to or availability of material is not “taken in good faith” within the meaning of subparagraph (c)(2)(A) of section 230, particularly whether actions can be “taken in good faith” if they are:

(A)  deceptive, pretextual, or inconsistent with a provider’s terms of service; or

(B)  taken after failing to provide adequate notice, reasoned explanation, or a meaningful opportunity to be heard…

Harold Feld at Public Knowledge has done a very thorough job addressing whether the FCC can actually do any of this in two articles, which I highly commend to your attention, and which answer the question firmly: no, the FCC cannot do this—but why not is complicated. Here, I want to briefly reiterate a few points made at length by Harold and supplement them with some discussion of the First Amendment.

Disclaimer: The (Un)-Importance of FCC Inside Baseball

As David Kaye and I discussed on a Silicon Flatirons conversation the other day, it’s important to emphasize that the mechanics of the Order are less important than its fairly obviously retaliatory intentions. With that said, it’s important to recognize, as Eric Null at OTI pointed out yesterday, that the mechanics are going to occupy serious attention and cycles, both for the FCC staff and civil society participants that will have to engage in the rulemaking and certain subsequent litigation (though some of that may be obviated by the November election). As Harold’s articles sketch out, the FCC can’t do what the Order demands, but it has just enough of a hook to mess around that telecom advocates are likely to be very busy here if the FCC’s leadership is so inclined. So I think it’s worth unpacking the (complex) details a bit to help underscore why this is ultimately a fool’s errand.

Can the FCC Interpret Section 230?

First, the optimistic story for proponents of the Executive Order:

• Section 230 is in the Communications Act. That means that the FCC, which is charged with implement and interpreting the Communications Act, might have some nominal authority to weigh in on Section 230 via the Act’s “necessary and proper” clause—Section 4(i) (47 U.S.C. 154(i)). and various other sources.
• There’s also a general obligation for people to follow FCC orders under Section 416(c) (47 U.S.C. § 416(c)), and the FCC can impose fines for violating its rules under Section 502 (47 U.S.C. § 502).
• As Harold observes, there’s often a classificatory debate at the FCC about whether an entity fits into the scope of a particular statutory bucket. That’s obviated under Section 230 because there’s relatively little contestation of the notion that social media platforms fall into the relevant bucket under Section 230(f)(2)—”interactive computer services” (ICS).

Why Not Title II?

Of course, when I’d previously thought about whether the FCC might crawl its way from Internet service providers “up the stack” to govern application-layer platforms—say, for example, to impose non-discrimination obligations on Google preventing it from favoring its own vertical offerings in Search—I’d always assumed that it would be Democrats making the move to fit the platforms into a broad interpretation of “telecommunications services” (and the related “telecommunications management” exception to the definition of “information services”) under the Communications Act. Doing this would allow the FCC to bring the full arsenal of Title II of the Act to bear on the problem. If you really want to impose a non-discrimination mandate, Sections 201 and 202 provide a very big stick. Section 202, for example, explicitly bars “unjust or unreasonable discrimination” by telecommunications services.

That said, while the Supreme Court greased the wheels in Brand X for widely disparate treatments of last-mile ISPs in the Communications Act’s definitional soup, fitting app-layer platforms like Twitter into Title II would be an extraordinary stretch under the best of circumstances, and these aren’t. This is large part because the current FCC has been engaged in an all-out war to interpret “telecommunications services” narrowly in the context of defining ISPs out of the scope of Title II in the Commission’s efforts to repeal the net neutrality rules. I have to assume that the hypocrisy of calling for the FCC to completely reverse course would have been a bridge too far for the Chairman or the Republican Commissioners, for whom net neutrality repeal has been a signature issue, and maybe even Trump himself, who ironically called net neutrality the “fairness doctrine for the Internet” and even speculated that it would “target conservative media.” Oops.

The End of the 230 Road

Back to 230: the jurisdictional hook and the necessary-and-proper stuff don’t get the FCC very far, because unlike lots of other parts of the Communications Act there’s nothing in Section 230 that specifically commands the FCC to develop regulations. That leaves the Commission with interpreting ambiguous parts of the statute.

As the EO suggests, the only likely target for interpretation is the term “good faith” in Section 230(c)(2)(A). It’s unclear exactly what that might mean, but however the FCC might interpret it has to be constrained to a large extent by the the same section’s explicit protection for taking down “otherwise objectionable” material—”whether or not such material is constitutionally protected.” Section 230(a) and (b) are also loaded with deregulatory stuff such as how it’s U.S. policy “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services” and how “[t]he Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation.” It’s hard to square those proclamations with some kind of neutrality mandate, especially because the current FCC has pointed to those provisions as at least thematic justifications for repealing neutrality rules for ISPs. Live by the sword…

Moreover, there’s just no colorable way to get from putting certain moderation decisions outside the scope of “good faith” to denying immunity for other non-moderated content under Section 230(c)(1), which is where all the action is. The Order asks the FCC to “clarify and determine the circumstances” under which (c)(1) and (c)(2)(A) might be linked, but doesn’t really identify any. I haven’t seen an argument for this other than vague handwaving and it seems so ridiculous I’m not even sure how to respond to it other than to say… “read the statute?”

What About the First Amendment?

The First Amendment obviously provides an additional set of limiting principles for what the FCC can do here. That said, I think a lot of commenters are incorrectly assuming that the Supreme Court’s decision in Reno v. ACLU, which skunked much of the rest of the Communications Decency Act on First Amendment grounds while leaving Section 230 standing, governs here. I don’t think Reno is necessarily dispositive or even all that relevant. That’s because Section 223(a) and (d)(1), the main provisions at issue in Reno, are all about “sending,” “displaying,” or “transmitting” proscribed content. That’s quite a different flavor of regulatory scheme than the one contemplated by the Executive Order, which is aimed at coercing platforms not to take down content. That is, the relevant interest implicated here is the platform’s editorial discretion (or lack thereof) to moderate user-generated content on its platform, not the interest of Internet users in sending, displaying, or transmitting content.

As Daphne Keller has written a lot about, the historical context of the First Amendment is important here, and I think there are a number of more relevant points of comparison than Reno:

• Miami Herald v. Tornillo, where the Supreme Court upheld 1A protections against interfering in the editorial discretion of newspapers;
• Red Lion v. FCC, where the Supreme Court upheld the fairness doctrine for broadcast;
• Turner v. FCC, where the Supreme Court upheld must carry obligations for cable television; and
• USTA v. FCC, where the DC Circuit upheld non-discrimination obligations on ISPs.

I tend to think that the courts consider the history and technical dynamics of each platform in evaluating carriage regulations under the First Amendment.

So where do social media platforms like Twitter fit into that tangle? There’s no obvious answer, and it’s complicated by the fact that some of these cases might come out differently if they were heard by today’s Supreme Court. Some initial cuts:

• On the one hand, we can probably toss out Red Lion, since neither the physical or economic scarcity notions that underpin the regulation of wireless transmission and broadcast in particular obviously apply to social media.
• Likewise, I don’t think Turner helps much, because the regulations contemplated in the Order clearly turn on the content of the moderation decisions in a way that the must carry rules at issue in Turner were carefully crafted to avoid.
• On the other hand, I think it’s a stretch to claim that a social media platform either objectively or subjectively exercises the same kind of editorial discretion that a newspaper does, so I don’t think Miami Herald neatly governs here.

USTA is perhaps the most helpful, because the net neutrality rules give us a very technologically proximate point of comparison. As a historical matter, the net neutrality rules arguably mirror the technical and political considerations that underpinned the architecture of the Internet—the idea that we should eliminate or at least strongly limit control over content and applications at the network and physical layers. And as a subjective matter, the major ISPs have gotten hit hard in the net neutrality saga because they’ve widely disclaimed any interest in discriminating on the basis of application or content beyond reptilian economic desires to engage in zero-rating and the like.

However, I think the techno-political history of Internet architecture supports at least an implicit corollary that the Internet should support a lot of control over content at the application layer. So as an objective matter, I would expect the courts to take a presumptively dim view of interfering with editorial control at the application layer. Then again, as a subjective matter, the platforms have been quite unclear about their interest in exercising editorial discretion on political grounds, disclaiming it explicitly in some cases.

However this might ordinarily turn out, I think Trump blew away any uncertainty here by signaling his hamfisted, barely pretextual intentions to retaliate against his critics in the Order, and I suspect that it’s going to be very hard for the FCC to launder the retaliatory stink out of the Order. It’s also worth noting that then-Judge, now-Justice Kavanaugh was on the other side of USTA, arguing that Turner requires a strong economic showing to sustain a carriage regulation.

* * *

I hope this post illustrates the dueling dynamics at play here: that the Order is unlikely to go anywhere in the end, but that why it won’t is complicated enough that it’s going to take a lot of work to unravel. Alas, this is going to be good only for telecom law professors and their exams, and not very good for civil society, the FCC’s long-term reputation, or democracy.