Gomez Decries Possible FCC Action on Section 230
An FCC advisory opinion on Section 230 of the Communications Decency Act would be “a fool's errand” and should be “DOA,” Commissioner Anna Gomez said Sunday in a thread on X responding to a New York Post report that FCC Chairman Brendan Carr is planning to act on 230 soon. “The FCC should not be in the business of controlling online speech,” Gomez said. “Congress and the courts must quickly step in to stop this unlawful power grab.”
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The Post report said Carr is “taking the first steps” toward issuing an advisory opinion that would “weaken or eliminate” Section 230 liability protections for tech companies. The FCC didn’t respond to a request for comment on the report, and FCC officials told us that no Section 230 item has been circulated to 10th-floor offices. But Carr has long said his FCC would take action on Section 230. It is the first matter highlighted in his chapter of the Project 2025 playbook, Mandate for Leadership. “The FCC has the authority to interpret that law and thus provide courts with guidance about the proper application of the statutory language,” Carr wrote. Carr also included tech companies such as Google and Facebook, though not Elon Musk's X, as being part of a “censorship cartel” that he has repeatedly vowed to target as chair.
An advisory opinion could fulfill President Donald Trump’s 2020 executive order asking for a rulemaking on interpreting Section 230 (see 2007270070), said Eric Goldman, co-director of Santa Clara University's High Tech Law Institute. Adam Candeub, who was acting NTIA administrator in Trump's first term and has called for Section 230 reforms (see 2008100046), is now general counsel of Carr’s FCC.
An advisory opinion on Section 230 “is an attempt to increase government control of online speech” and is “meant to bully private social media companies to comply with direct demands from the administration,” Gomez said. “Increasingly the biggest threats to free speech are not coming from Big Tech or from the media. They are coming from our own government.”
The FCC “already knows” it "has little to no authority” over Section 230, Gomez said. “That’s why this is a vague and weak effort.”
Goldman said any such advisory opinion would probably be useful only to judges looking for reasons to reject Section 230 defenses. Regulatory agencies in general are getting minimal deference in court, due to the U.S. Supreme Court’s Loper Bright decision last year, so an FCC interpretation of a statute could have no practical weight in a court, he said. Section 230 is outside the scope of the FCC, so no credit should be given to the FCC’s interpretation, he added, although some judges might look to the FCC interpretation for citations when they make Section 230 decisions. He said some judges have been relying on nonbinding opinions to undermine 230, such as U.S. District Court opinions that conflict with binding precedent. He said an FCC statement becomes another such citable source.
In the wake of the U.S. Supreme Court decisions eliminating Chevron deference, the FCC's previous arguments on why it had authority to interpret Section 230 are unlikely to hold up, Phoenix Center President Lawrence Spiwak said in a November post for the Federalist Society. “There, the Court made it crystal clear that it is the exclusive role of the courts -- and not the administrative state -- to interpret statutes.” The major questions doctrine would likely also impede FCC efforts to claim power over Section 230, Spiwak wrote. “A legitimate argument can be made that having the FCC severely limit the immunity granted by Section 230 is a question of ‘economic and political significance’ best left to Congress.”
"Like nearly everything Carr has done since being named FCC chairman, his attack on Section 230 is designed more to signal his loyalty and intimidate private parties than it is to actually effectuate some law-based outcome," said Ari Cohn, lead counsel-tech policy at the Foundation for Individual Rights and Expression.