FCC Commissioner Brendan Carr once more misrepresents the Part 230 debate
Late on Tuesday night, FCC Commissioner Brendan Carr suddenly launched a strange and misleading anti-230 Twitter thread in which he (incorrectly) claimed that supporters of Section 230 (which he incorrectly refers to as “big tech lobbyists”) ” routinely associate legal protection with First Amendment rights. “Here is the thread in the clear with my answers and corrections.
The debate on section 230 often generates more heat than light.
One reason: Big Tech lobbyists routinely associate legal protections with first-change rights.
I mean what?!? This is like saying day is night, up is down, or yellow is purple. There is one side of this debate that has regularly linked Section 230 to Amendment 1: and these are the people who argue against Section 230. Almost every complaint about Section 230 is actually a complaint about the 1st Amendment. I mean, the NY Times had to make a fix saying, “Oops, we blamed 230 for this, but it really was the first change.”
For example, they argue that action on the petition under Section 230 would force websites to deliver a speech in violation of their initial customization rights.
Not at all. The NTIA petition specifically states that websites would retain their 1st amendment right to remove content “for any reason”.
This is perhaps the strangest of all the tweets out there. The NTIA petition calls on the FCC, including Brendan Carr, to reinterpret Section 230 to indicate that Congress (including those who wrote the law) and dozens of courts have all misinterpreted it. Let me repeat that: the petition asks Carr to reinterpret the law. Yet is he citing this request here as his evidence that his reinterpretation does not imply any rights of first amendment? It’s like a judge pointing out the plaintiff’s complaint as a binding precedent. It doesn’t make any sense at all.
Similarly, the claim that the reform of Section 230 would revive the Fairness Doctrine or impose mandate neutrality misses the mark.
The petition is very clear on this: it would not require a website to contain “any content at all”.
Again, it makes no sense to refer to the petition. The petition asks Carr to reinterpret the law. It is the request. It has no legal weight or authority (in part because it is wrong about almost everything).
The reform of § 230 * would * bring the urgently needed clarity to the terms contained in the legal text.
There has never been a single complaint from judges or the authors of the law that the terms are unclear. There is no problem with the clarity. There are only some people who get upset that some websites are moderating in a way they don’t like.
In other words, the question posed in the petition under section 230 is not whether the first amendment continues to cover (it will) a decision to dismantle, but whether a particular dismantling * also * comes from the legal protection of section 230 benefits.
But that’s not an open question. It’s pretty damn well organized. It’s not that there is a judicial division here. Every single court decision has agreed on it. There is no confusion. There is no disagreement. There is no lack of clarity. The law is very clear.
The answer to this question follows from the text of the statute and does not affect the constitutional rights of a website.
Law. This is why we pointed out that any folks complaining about content moderation decisions aren’t really 230 crazy, they’re crazy about the 1st Amendment. And that includes … wait for it … FCC commissioner Brendan Carr, who said a few months ago we need to reform Section 230 to prevent tech companies from “biased moderation.” Besides … moderation (biased or not) is protection from … the 1st amendment.
So Brendan Carr seems to be speaking from both sides of his mouth. To Trumpists, he goes on Fox News and says we need to reform Section 230 to change their moderation practices and force them to keep content they don’t want online. But then he goes on Twitter and insists that it’s the other people (the people who actually know the law) who want 230 to conflict with the 1st Amendment, and that changes to 230 companies don’t stop them from doing that Moderate language. The speech Brendan Carr said we need to change 230 to force businesses to host.
So … which Brendan Carr is lying?
FCC Commissioner Brendan Carr again misrepresents the Section 230 debate
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