Free speech “hypocrisy” won’t end with a new FCC or new administration

by Steve Blum • , , ,

Open internet dont tread on me 2

It’s an odd twist of logic that says the Federal Communications Commission can’t regulate Internet service or facilities, but it can be the Internet content cop. But that’s the position that FCC chair Ajit Pai is taking in regards to what is known as Section 230 – a bit of federal communications law that shields Internet platforms, like Facebook, from liability for content posted by their customers. The urge that drives him is near universal among major party politicians in Washington, D.C.

When commissioners voted on party lines on Wednesday to reaffirm the 2017 repeal of network neutrality rules, Pai boasted that “ the Internet has remained free and open”. Which is at odds with his declaration two weeks ago that it’s his job “to move forward with a rulemaking to clarify” social media companies’ “First Amendment right to free speech”.

There’s nothing to clarify.

There’s no loophole in “congress shall make no law…abridging the freedom of speech, or of the press”. If congress can make no law, then the FCC can make no rules. Liability is a different matter. You can say or print whatever you want, but to a limited extent you are responsible for the consequences. But the FCC is not a libel and slander tribunal – that job belongs to the judicial branch of the federal government – and its authority is limited to telecommunications matters.

Jessica Rosenworcel, the senior democrat on the FCC and the likely interim, if not actual, chair if Joe Biden wins the presidency, called out Pai’s hypocrisy…

Following a push from the Administration, the FCC…now insists that [Section 230] compels the agency to regulate certain speech online. In the end, it’s not just the hypocrisy that disappoints, or the intellectual contortions required to make sense of this. It’s the dishonesty. It can’t be that the FCC points to Section 230 to disavow authority over broadband but then uses the same law to insist it can turn around and serve as the President’s speech police.

Don’t take her words as pure democratic party policy, though. Using Section 230 as a club to regulate online speech is a bipartisan goal. The two major parties differ in what kind of speech and editorial control should be regulated, but there’s near unanimous agreement amongst federal politicians that they can and should bully people and companies into speaking as they decree.

Whatever the result of next week’s election, freedom of speech and of the press, as recognised by the First Amendment, will be at risk in the coming year.