In October, a partisan furor erupted in Washington, D.C., as FCC Chairman Ajit Pai said he would initiate a “Section 230” rulemaking process, in the wake of a censorship vs. “fake news” firestorm involving Twitter, Facebook and the New York Post.
Frank Pallone Jr., the House Energy and Commerce Chairman, and Mike Doyle, the Communications and Technology Subcommittee Chairman, blasted Pai, calling it “a blatant attempt to help a flailing President Trump.”
Much has changed since then. The president’s days are numbered — and his ouster ahead of Inauguration Day is being discussed by many on Capitol Hill, the scene of a January 6 insurrection by Trump supporters.
As such, Pai is standing down. But, he believes a rule rewrite is needed, and is the job of Congress.
On Thursday, October 15, Pai revealed that he intends to move forward with a FCC rulemaking to clarify the meaning of Section 230 — something Republicans on Capitol Hill demanded 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.
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.”
That immunity could be wiped off the map. But, it will take a Republican push that will be nearly impossible, given the outcome of not only Biden’s November presidential victory, but the election in Georgia of Raphael Warnock and Jon Ossoff to Senate seats, tilting the upper body of Congress to Democratic control.
As such, in just days Democrats will control the White House, Congress and the FCC.
This led Pai, in a 30-minute Communicators interview with C-SPAN, to state, “I do not intend to move forward with a notice of proposed rulemaking.”
While it is a rebuke of the president, it is hardly a surprise, given President Trump’s use of Twitter on Wednesday to issue a short video message that was later pulled by the social media service. In it, the president further made unproven accusations about the election results as he told his supporters to “go home.”
For Pai, time is everything, and it is the crux of his reason why the Commission will not go forward with a NPRM on Section 230. “Given the results of the election, there’s simply not sufficient time to compete the administrative steps necessary in order to resolve the rule-making,” he said.
Tell that to Democratic Commissioner Geoffrey Starks. Days after Joe Biden declared victory over Trump, which the president refused to accept, Starks addressed the Commission’s role in reviewing Section 230 at the virtual 2020 Interactive Advertising Bureau Policy Summit.
In his view, it would be “very hard” for Pai to move forward with a rule change on Section 230 of the Communications Decency Act before Inauguration Day.
What’s next? With Democrats in the driver’s seat, Pai still believes bipartisan consensus exists that would necessitate a rule change, and that the Biden Administration will have to “study and deliberate” on the matter “very seriously.”
What about newly installed Republican Commissioner Nathan Simington — nominated by Trump and approved by the GOP majority in the U.S. Senate on a party-line vote because of his stance on Section 230?
He’s a minority voice with little clout on rewriting the rule come Jan. 21, and took time on Thursday to condemn the violence that occurred Jan. 6 at the U.S. Capitol. Simington urged all Americans to work together toward a peaceful transfer of administrative power on January 20.
In doing so, the Canada-born Simington embraced the gift of U.S. citizenship—a choice made “in appreciation for the traditions of vigorous, peaceful engagement that have characterized the nation’s 230 years of constitutional governance.”
He concluded, “Our mandate at the Commission is to work for the benefit of all Americans. Should we disagree on some issues, we would do well to remember Thomas Jefferson’s words at the time of another presidential transition, the first in which the Administration changed parties: ‘…every difference of opinion is not a difference of principle. We have called by different names brethren of the same principle.’”
