On September 16, in a bitter game of Washington chess, the Trump Administration moved ahead with its nomination to a FCC Commissioner’s seat — presently held by embattled Republican Mike O’Rielly.
It has everything to do with Section 230 of the Communications Act of 1996.
Late Thursday, FCC Chairman Ajit Pai revealed that he intends to move forward with a FCC rulemaking to clarify the meaning of Section 230 — something Republicans on Capitol Hill are screaming for after it became known two of the world’s biggest social media platforms blocked a New York Post article with accusatory claims regarding Democratic presidential candidate Joe Biden’s son, Hunter Biden, and Ukraine.
Minutes later, the Senate Committee on Commerce, Science, and Transportation revealed that it will hold a nomination hearing for O’Rielly’s suggested successor — scheduled for one week after Election Day.
Sen. Roger Wicker (R-Miss.), Chairman of the Senate Commerce Committee, will convene a nominations hearing set for 2:30pm on Tuesday, Nov. 10.
The hearing will consider presidential nominations of Greg Autry to serve as NASA’s CFO, and of Daniel Huff to serve as Assistant Secretary of the Department of Commerce.
And, most notably, the third presidential nominee is an individual who has been in his current position of National Telecommunications and Information Administration (NTIA) Senior Advisor for all of four months.
That would be Nathan Simington, who would become the FCC’s newest Commissioner.
And, he would be fine with a rewrite of Section 230 — something O’Rielly, a strict constitutionalist, has said he would not do. As such, this puts O’Rielly at odds with the White House. Trump reacted. O’Rielly will be leaving once his term ends.
The Full Committee hearing will not be a virtual affair; it will take place in the Russell Senate Office Building 253, with COVID-19 restrictions and protections in place.
With the possibility of a contested presidential election or the lack of an official result on Nov. 10, Senate Democrats could vehemently protest the politically motivated substitution of a pro-Section 230 revisionist for the constitutionalist that is O’Rielly.
Furthermore, should Biden emerge victorious, with no legal challenge, as of Nov. 10, it sends a message that the Trump administration will be an active lame duck, intent on pushing through as much legislative activity as it can before it’s too late.
O’Rielly became a target of the Trump White House for his decision to approve an application from Ligado to facilitate 5G and “Internet of Things” services. Comments on social media the Fairness Doctrine made July 29 during a virtual luncheon address are also likely at play.
But, it is Section 230 of the Communications Act of 1996, signed into law by President Bill Clinton, that is the focal point of Washington’s biggest battle today.
Section 230 states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” It provides immunity from civil liabilities for information service providers that remove or restrict content from their services they deem “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”
Enter the New York Post, the famed tabloid founded by Alexander Hamilton in 1801 and today owned by News Corp., controlled by Rupert Murdoch. Among the stories it has published in recent days are a tale of a woman who called off her wedding with a ghost after he kept disappearing.
Then, there is its exclusive coverage of emails obtained from a computer once owned by Hunter Biden, the son of Joe Biden. On Wednesday (10/14), the Post offered a sensational report focused on a “smoking-gun email” which reveals “how Hunter Biden introduced” a Ukranian businessman who his dad, who was Vice President of the United States at the time.
While the content’s authenticity has been questioned by media deemed “liberal,” including The Washington Post, the bigger story could be how Facebook and Twitter handled its user’s sharing of the New York Post article.
Twitter blocked the story from registered users who shared it via a Tweet.
Then, there is Facebook, which blocked the story from being shared by its registered users.
Capitol Hill’s elephants erupted in anger. By 10:30pm Eastern Thursday (10/15), Twitter relented, with Legal, Policy and Trust & Safety executive Vijaya Gadde posting on the service that it has changed its “Hacked Materials Policy,” noting that Twitter will no longer remove allegedly “hacked” content unless it is shared by hackers themselves or by “accomplices,” and will label questionable material rather than block it from being shared.
Twitter put the Hacked Materials Policy in place in 2018 “to discourage and mitigate harms associated with hacks and unauthorized exposure of private information,” Gadde said. “We tried to find the right balance between people’s privacy and the right of free expression, but we can do better.”
Freelance Capitol Hill reporter Andrew Feinberg fired back, “How much did the bullying from the GOP Senators factor into this decision?”
That comment pales in comparison to other more accusatory messages left on Twitter by a variety of other users.
What did Facebook do in the wake of the story suppression storm? Ironically, Facebook communications executive Andy Stone took to Twitter on Wednesday to say, “I want be clear that this story is eligible to be fact checked by Facebook’s third-party fact checking partners. In the meantime, we are reducing its distribution on our platform.”
PAI PROMISES COMMISSION RULES
While Democrats control the House of Representatives, Energy and Commerce Republican Leader Greg Walden (R-Ore.), Communications and Technology Subcommittee Republican Leader Bob Latta (R-Ohio), and Consumer Protection and Commerce Subcommittee Republican Leader Cathy McMorris Rodgers (R-Wash.) let it be known that they’re just as furious as their Senate Republican colleagues over the Twitter and Facebook censorship flap.
And, their joint statement offered a direct link to the Post report, making it clear to all that the emails referenced in the story, “if authentic, contradict previous statements” made by Joe Biden about his engagement and awareness of his son’s foreign business endeavors.
“Time and time again we’ve seen big tech companies refuse to be transparent about their practices and too often unfairly censor right of center voices,” the three House Republicans said. “This must stop. Twitter, Facebook, and others should take a long, hard look at the policies that determine what they suppress on their platforms. Why is the New York Post story problematic, but stories from other outlets containing leaked, hacked, or classified information okay? At what point do these platforms take on the responsibility of publishers, and should they be treated as such? Should Section 230 protections apply to platforms who act as publishers?”
The statement came after FCC Chairman Pai confirmed that he will draft and circulate a Notice of Proposed Rulemaking (NPRM) to clarify the meaning of Section 230.
“Members of all three branches of the federal government have expressed serious concerns about the prevailing interpretation of the immunity set forth in Section 230 of the Communications Act,” Pai wrote on Thursday, claiming that there is bipartisan support in Congress to reform the law.
He continued, “The U.S. Department of Commerce has petitioned the Commission to ‘clarify ambiguities in section 230.’ Earlier this week, U.S. Supreme Court Justice Clarence Thomas pointed out that courts have relied upon ‘policy and purpose arguments to grant sweeping protections to Internet platforms’ that appear to go far beyond the actual text of the provision. As elected officials consider whether to change the law, the question remains: What does Section 230 currently mean? Many advance an overly broad interpretation that in some cases shields social media companies from consumer protection laws in a way that has no basis in the text of Section 230. The Commission’s General Counsel has informed me that the FCC has the legal authority to interpret Section 230. Consistent with this advice, I intend to move forward with a rulemaking to clarify its meaning.”
Pai concluded that while social media companies have a First Amendment right to free speech, “they do not have a First Amendment right to a special immunity denied to other media outlets, such as newspapers and broadcasters.”
Republican FCC Commissioner Brendan Carr applauded Pai’s statement. “Section 230 reform is long overdue,” he said. “The status quo isn’t working. That is why I have called for the FCC to take action and do our part to rein in Big Tech. Chairman Pai is right that the FCC has legal authority to interpret Section 230, and I applaud his leadership in announcing the FCC will move forward with clarifying the statute.
SMOOTH SAILING FOR SIMINGTON?
With Republicans controlling the Senate and Section 230 the talk of the town, could Simington’s confirmation now be a certainty, erasing any questions that the presidential election outcome would impact his chances of succeeding Mike O’Rielly?
That answer appears to be “yes,” even though just 3 1/2 weeks ago Senate Commerce Committee Communications Subcommittee Chairman John Thune (R-S.D.) expressed doubts a nomination hearing for Simington would be seen in this Congressional session.
As such, Simington’s path to the FCC, which just relocated to shiny new digs a short walk from Union Station or Gallaudet University’s Red Line Metro station, appears obstacle-free — unless Democrats filibuster.
And, it would be a more unusual route to a Commissioner’s role than seen in recent years. The NTIA is not a usual source for FCC rulemakers. But, 2020 has been far from normal, even when it comes to Washington politics.
What sort of background does Simington have? Before joining the NTIA, in June, Simington was a senior counsel for Brightstar, the SoftBank Group-owned wireless distributor. He’s also been an attorney at Kirkland & Ellis, Chapman and Cutler, and started his career in 2011 as an associate at Mayer Brown following his completion of law school at the University of Michigan.
Simington is also an accomplished violinist, with schooling at the Eastman School of Music.
Why Simington? It is said that he had a hand in a controversial White House executive order on social media, which triggered furor among those who called it inappropriate regulation of networks such as Facebook and YouTube. It also protects websites from public comments made that could result in potential libel or slander; RBR.com reviews all comments before publishing, whereas McClatchy Co.-owned daily newspapers do not.