Mediaboss Marketing

Late on Tuesday evening, FCC Commissioner Brendan Carr suddenly issued aweird and misleading anti-230 Twitter thread, claiming (falsely) that supporters of Section 230 (who he incorrectly calls Big Techs lobbyists) routinely conflate statutory protections with First Amendment rights. Heres the thread in plain text, with my responses and corrections interjected.

The debate over Section 230 often produces more heat than light.

One reason: Big Techs lobbyists routinely conflate statutory protections with First Amendment rights.

I mean, what?!? This is like claiming day is night, up is down, or yellow is purple. There is one side of this debate that has regularly conflated Section 230 with the 1st Amendment: and thats the people arguing against Section 230. Almost every complaint about Section 230 isactually a complaint about the 1st Amendment. I mean, the NY Times has had torun a correctionsaying oops, we blamed 230 for this, but really it was the 1st Amendmentmultiple times.

For instance, they argue that action on the Section 230 Petition would force websites to carry speech in violation of their First Amendment rights.

Not at all. NTIAs Petition expressly says that websites would retain their 1st Amendment right to remove content for any reason.

This may be the weirdest of all the tweets in the bunch. The NTIA Petition is asking the FCC, including Brendan Carr, to reinterpret Section 230, to suggest that Congress (including those who wrote the law) and dozens of courts have all been interpreting it wrong. Let me repeat that: the petition is asking Carr to reinterpret the law. And yet, here he is citingthat requestas his evidencethat his reinterpretation wont implicate 1st Amendment rights? Its kind of like a judge pointing to the plaintiffs complaint as the binding legal precedent. It makes no sense at all.

Similarly, the claim that Section 230 reform would resurrect the Fairness Doctrine or mandate neutrality misses the mark.

The Petition is quite clear on this: It would not require any website to carry any sort of content at all.

Again, citing to the petition makes no sense. The petition is asking Carr to reinterpret the law. Its the request. It has no legal weight or authority (in part because its wrong on nearly everything).

What Section 230 reform *would do* is bring much needed clarity to the terms contained in the statutory text.

There has never, not once, been a complaint from judges or the authors of the law that the terms are unclear. There is no problem with clarity. There are just some people who are upset that some websites moderate in a way they dislike.

In other words, the question presented by the Section 230 Petition is not whether the First Amendment will continue to cover a take down decision (it will) but whether a particular take down *also* benefits from Section 230s statutory protections.

But thats not an open question. Its pretty damn well settled. Its not like theres a court split here. Every single court decision has agreed on this. Theres no confusion. Theres no disagreement. Theres no lack of clarity. The law is very clear.

The answer to that question flows from the text of the statute and leaves a websites constitutional rights uninfringed.

Right. Which is why weve pointed out that all the people complaining about content moderation decisions arent actually mad about 230, but are mad about the 1st Amendment. And this includes wait for it FCC Commissioner Brendan Carr who just months ago said thatwe need to reform Section 230to stop tech companies from biased moderation. Except that moderation (biased or not) is protection by the 1st Amendment.

So, Brendan Carr seems to be talking out of both sides of his mouth. To Trumpists he goes on Fox News and says that we need to reform Section 230 to change their moderation practices and force them to keep content they dont want online. But then, he goes on Twitter and insists its the other guys (the people who actually know the law) who want to conflate 230 with the 1st Amendment, and that changes to 230 wont stop companies from moderating speech. The very speech that Brendan Carr said we need to change 230 to force companies to host.

So which Brendan Carr is lying?

FCC Commissioner Brendan Carr Again Misrepresents The Debate Over Section 230

More Law-Related Stories From Techdirt:

Another Day, Another Antitrust Lawsuit For GoogleDEA Ditches Location Data Vendor Currently Being Investigated By CongressYet Another Report Shows Asset Forfeiture Doesnt Reduce Crime Or Cripple Criminal Organizations

Link:
FCC Commissioner Brendan Carr Again Misrepresents The Debate Over Section 230 - Above the Law