FCC Commissioner Brendan Carr Again Misrepresents The Debate Over Section 230

from the why-does-this-keep-happening dept

Late on Tuesday evening, FCC Commissioner Brendan Carr suddenly issued a weird and misleading anti-230 Twitter thread, claiming (falsely) that supporters of Section 230 (who he incorrectly calls "Big Tech's lobbyists") "routinely conflate statutory protections with First Amendment rights." Here's 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 Tech’s 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 that's the people arguing against Section 230. Almost every complaint about Section 230 is actually a complaint about the 1st Amendment. I mean, the NY Times has had to run a correction saying "oops, we blamed 230 for this, but really it was the 1st Amendment" multiple 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. NTIA’s 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 citing that request as his evidence that his reinterpretation won't implicate 1st Amendment rights? It's kind of like a judge pointing to the plaintiff's 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. It's the request. It has no legal weight or authority (in part because it's 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 230’s statutory protections.

But that's not an open question. It's pretty damn well settled. It's not like there's a court split here. Every single court decision has agreed on this. There's no confusion. There's no disagreement. There's no lack of clarity. The law is very clear.

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

Right. Which is why we've pointed out that all the people complaining about content moderation decisions aren't 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 that we need to reform Section 230 to 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 don't want online. But then, he goes on Twitter and insists it's the other guys (the people who actually know the law) who want to conflate 230 with the 1st Amendment, and that changes to 230 won't 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?

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Filed Under: 1st amendment, brendan carr, content moderation, fcc, free speech, section 230


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  • icon
    bhull242 (profile), 17 Dec 2020 @ 10:19am

    I think I get what he’s saying. See, there is one part of §230 that is possibly, arguably somewhat unclear, at least at a glance: what it means to develop content in part. What he’s arguing is that moderation of content may or may not be considered developing the content that does appear at least in part. Now, he’s completely and utterly wrong about that, but that’s the most charitable reasoning I can think of.

    Now, I am not that charitable, so I’d say that it’s probably just him trying to persuade those who aren’t on board with reforming §230, and he probably doesn’t care about being consistent or accurate. He’s just pushing an agenda.

    reply to this | link to this | view in chronology ]

  • icon
    bhull242 (profile), 17 Dec 2020 @ 10:30am

    In other words, the question presented by the Section 230 Petition is […] whether a particular take down also benefits from Section 230’s statutory protections.

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

    This confused me at first. It almost sounds like he’s saying that the answer is, “Yes, a particular takedown does benefit from §230’s statutory protections,” and if so, then I’d agree, and that answer does “flow[] from the text of the statute and leaves a website’s constitutional rights uninfringed.“

    However, I’m pretty sure that he’s saying that the question can be answered using the text of the statute (true) and that the answer to that question has no impact on a website’s constitutional rights. If that’s what he’s saying, then I disagree. That would effectively be punishing a website for exercising their constitutional rights.

    At any rate, a plain reading of the text of §230, the abundance of case law on the subject, and the original intent of the statute make it very clear that any moderation does not forfeit §230 protections. Also, I’m pretty sure that the FCC doesn’t have the authority to interpret a statute that doesn’t involve them in such a way as to go against what the courts have ruled about what the statute does or does not do.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Dec 2020 @ 10:32am

    To answer that final question.

    Yes! His lips were moving, right?

    reply to this | link to this | view in chronology ]

    • icon
      sumgai (profile), 17 Dec 2020 @ 10:45am

      Re: To answer that final question.

      Well, to be specific, the last question was predicated on which of the two versions of B.C. was lying - the willfully ignorant one, or the innocently ignorant one. So your response should've been worded thus: 'Not just both versions, but all of his versions were lying!"

      Being a politician of the captured-regulator sort, the bit about Carr's moving lips was redundant, but I'm not gonna pee in your Cheerios. ;)

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Dec 2020 @ 10:35am

    will any of the morons who are trying to 'rewrite section 230 or reinterpret it or do whatever the hell they want ever stop doing what they're doing? in short, no they wont! why? because certain industries like mpa, riaa, Hollywood and every law security force there is in the USA and include Barr (Trump dick licker!) want to be able to run the internet how they want, want to prosecute as many as possible, want to throw the constitution out the window and remove any rights left for anyone/anything! basically, there are some real powerful people trying to turn the USA into another 1930's Fascist country, where no one has any rights and can be thrown in jail, if lucky, or 'disappeared' if unlucky! and these fuckers dont think there's anything wrong with what they're doing! what does that tell you? Jeez!!

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 17 Dec 2020 @ 10:38am

    'I don't like the answer so it doesn't count!'

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

    Strange how courts and judges seem to have little if any difficulty reading and understanding the terms used if the text is so confusing, if only there were one, maybe two people you could ask regarding what the text was meant to mean when it was written and put into law, someone who could explain in very small words what the goal was, how it was intended to be met and whether it's working as intended today...

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 17 Dec 2020 @ 12:07pm

    Love the idea.

    That 2/3 of this nation understands something, ISNT a problem.
    And a few idiots on top Think they KNOW something isnt right about what Everyone else has no problems about.

    The only thing that consistent tends to be Those debating this tend to be the SAME ones trying to Fight the Internet corporations. And the only reasoning on that, is they arnt paying Lobbyists to PAY the gov. graft.

    Are we a republic
    A democracy
    Capitalist Monkey.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Dec 2020 @ 12:20pm

    So... which Brendan Carr is lying?

    Insert gif of little girl saying "Why Not Both?"

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Dec 2020 @ 6:09pm

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

    So Ima continue in that tradition, 123go!

    reply to this | link to this | view in chronology ]

  • icon
    Darkness Of Course (profile), 18 Dec 2020 @ 1:11am

    A Republican?

    Both versions are lying.

    Was this a trick question, because Republicans lie. All the time. About everything. They cannot tell the truth. It is impossible.

    Well, technically they would have to understand that there is truth that isn't made up bullshit. But, still Republicans.

    reply to this | link to this | view in chronology ]


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