Wyden, Starks Criticize GOP Attempts to ‘Chill’ Content Moderation

None of the proposals, including one from Sens. Roger Wicker, R-Miss., and Lindsey Graham, R-S.C. (see 2009080082), comes “close to protecting those core values” of the First Amendment and content moderation, Wyden told a Center for Democracy & Technology webcast. Any approach that discourages fact-labeling or fact-checking is taking “us in the wrong direction,” Starks said.

Starks was answering a question from CDT CEO Alexandra Givens. The Wicker bill essentially says that by virtue of appending lawful speech associated with user posts, the website becomes responsible for the substance of the user’s post, Givens said. President Donald Trump’s social media executive order (see 2006160059) followed a dispute with Twitter over labeled tweets (see 2005270016).

NetChoice and Free Press opposed Tuesday's introduction of the legislation from Wicker, Graham and Sen. Marsha Blackburn, R-Tenn. The bill would “thwart” websites' attempts to remove foreign misinformation, COVID-19 misinformation and cyberbullying, said NetChoice Vice President Carl Szabo: “The bill would put the online ecosystem out of balance by severely limiting what content online services can remove.” Like the EO it mimics, the legislation is “a naked attempt to silence anyone who attempts to correct or criticize Trump. It’s as blatantly outrageous as it is unconstitutional,” said Free Press Senior Policy Counsel Gaurav Laroia.

Trump is trying to force his version of the First Amendment and create a bizarre argument the GOP is being censored without evidence, Wyden said. The FCC has historically had no role in interpreting Section 230, which doesn’t invite agency rulemaking, Wyden added. The White House didn’t comment.

The EO is an attempt to influence how social media companies operate “at a time when their decisions are heavily implicated in [Trump’s] own electoral future,” Starks said. Policymakers need to ensure social media is free from chilled speech and has the ability to prevent misinformation, he added.

NTIA’s petition puts the FCC in an uncomfortable position to potentially contradict previous stances, Starks said. When the commission repealed a rule protecting net neutrality, it leaned heavily on Section 230, he noted: An agency can’t pretend to have a light-touch regulatory framework when it’s regulating content with a heavy hand. He noted Americans for Prosperity argued that granting the petition would jeopardize the economic and legal reasoning for the net neutrality order: “There’s a clear clash.”

The agency has different responsibilities on net neutrality and Section 230, Starks said: “Network neutrality involves the regulation of telecommunications service, something that is very clearly in the FCC’s wheelhouse here, and so my point is” NTIA supporters can’t align their 2017 view of Section 230 with what NTIA proposes.

Starks urged Chairman Ajit Pai to swiftly reject the petition, saying it will have a chilling impact on the November election: “There are thousands of items that are put out for public comment that never go anywhere. There’s never a rulemaking instituted, and they just kind of simply die a quiet death.” Pai’s office declined comment.

NTIA didn’t make the case for the FCC to get involved in the way the petition envisions, Starks said: Only Congress can rewrite the statute. There’s quite a debate about changes to Section 230 on Capitol Hill, and the FCC shouldn’t circumvent that process, he added: The EO is “the product of Trump’s impatience and obsession with his online persona.”