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?

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

Hypocrite FCC Commissioner Cheers On Zoom Block Usage By Person He Disagrees With; While Insisting Social Media Shouldn't Block People

from the want-to-try-that-again-brendan? dept

FCC Commissioner Brendan Carr has been first in line to gleefully pump up the still-unsubstantiated-by-any-evidence claim that social media companies are "unfairly censoring conservatives." In fact, he's been very vocal about the idea that social media should not be blocking anyone for their political beliefs. Just a few months ago he attacked "conservative bias and threats to free speech on the internet," saying that "doing nothing is not the answer." He's complained loudly about when Twitter briefly banned an infamous Twitter troll/Republican political operative for harassment, saying (falsely) that it was "censorship on social media and an attempt by social media "gatekeepers" to "launch a war on memes so they can control the 2020 narrative." No, dude. It was Twitter following its rules against harassment.

Oh, and here's my favorite. Back in 2016, he happily quoted his then-boss Ajit Pai saying "the impulse to squelch free speech on college campuses is anything but progressive."

Can you take a wild guess where this is heading? I know that you can.

Last week there was yet another hyped up culture war nonsense thing, when some conservative websites started freaking out that two faculty members at San Francisco State were planning to host a webinar/roundtable conversation with one of the participants being Leila Khaled, considered to be the first woman to hijack a plane. She hijacked two planes -- one in 1969 and one in 1970 -- as part of the Popular Front for the Liberation of Palestine. In 1997 (many years later) the State Department designated the PFLF as a foreign terrorist group.

This resulted in many arguing that merely allowing Khaled to speak with students was somehow a violation of laws against material support for terrorists. This is wrong. Some people point to the ruling in Holder v. Humanitarian Law Project, in which the Supreme Court (somewhat awkwardly) upheld the law against material support for terrorism, saying that groups that were seeking to support humanitarian or legal projects associated with terrorist groups could not do so.

But that's not what's happening here. This was just some professors hosting a Zoom call. As FIRE points out, there does not seem to be any realistic way to argue that Khaled being on a Zoom call violates the law:

The Lawfare Project went further, calling on the U.S. Department of Justice to “take appropriate action” against the SFSU faculty members for hosting the discussion and Zoom for broadcasting it, alleging that the discussion amounts to material support for terrorism in violation of federal law. Rep. Doug Lamborn joined this call, asking United States Secretary of Education Betsy DeVos and Secretary of the Treasury Steven Mnuchin to open investigations into — and cut all federal funding to — the university, arguing that Khaled cannot be given a “platform” because it is “aiding the dissemination of terrorist propaganda” and is “not speech or academic inquiry.”

That’s unlikely. First, we’re not aware of any indication that Khaled will be compensated for her virtual appearance, meaning the only conceivable “support” provided is the virtual forum for the discussion — in other words, speech. The Supreme Court’s pronouncement on the intersection of the First Amendment and “material support for terrorism” laws — Holder v. Humanitarian Law Project— is muddled, but focused on the “fungible” nature of the training provided to prohibited organizations, as it allowed the organizations to become more efficient. But the Court also pointedly noted that the law does not prohibit being a member of the organization, just providing it with “material” support. In other words, association — even membership — with an organization is protected by the First Amendment.

Second, Holder should not be read to enshrine no-platforming into federal law. Universities should be places where students and faculty can discuss — and hear from — people whose acts or views may be controversial or unlawful. Students and faculty members must remain free to invite speakers — whether they agree with them or not — without fear of censorship or punishment by administrator, bureaucrat, or politician. The First Amendment extends a right not only to speak, but also a right to hear or receive information. This right makes no exception for people who have engaged in misdeeds, criminal activity, or membership in blacklisted organizations. Indeed, in Kleindienst v. Mandel, although the First Amendment did not require the federal government to grant a visa to a communist speaker, the Supreme Court said it was “loath” to hold that the ability of students and faculty to hear from the speaker by telephone was sufficient to override their interest in the “particular form of access” to face-to-face discussions. If Holder applies here, then there is no form of access available.

You may or may not like Khaled, and you may not approve of her group or her views or her past actions. But what she was looking to do here was purely in the realm of speech. 1st Amendment protected speech. As complaints got louder, Zoom, on whose platform the call was to be held, said that it would not allow the call to be done. That... seems concerning. While private social media companies have every right to determine whose content they wish to host, it gets a lot trickier when we're talking about infrastructure and just the transmission, rather than hosting, of speech.

As some are pointing out Zoom's decision represents a terrible precedent. If you make enough noise, you can block someone from merely presenting. In that article, Mark Gray wonders if a hypothetical 2024 Republican National Convention might be pressured into not being allowed to be broadcast over Zoom because Roger Stone is one of the speakers. After all, he's been convicted of seven felonies. Or what about various convicts who have done their time and now give lectures to warn people about the mistakes they made in the past? Should they not be able to use Zoom?

And, yet, there was Brendan Carr, first in line, to cheer on this decision. He who had so eagerly tweeted against the "impulse to squelch free speech on college campuses" was cheering on a move by a tech company to squelch free speech on campus, saying that you "don't need to hear both sides." When I pointed out to him that this seemed hypocritical he doubled down saying that he has "no issue with a company denying service in this case," because Khaled was a "convicted terrorist who literally hijacked two airplanes where at least one person was shot." Lest you think Khaled shot someone, it was her partner in trying to hijack the plane who got shot. In neither of the two hijackings -- which again, were 50 years ago -- did anyone else die.

But, really, there are two key points here. First, Carr is admitting that his position is hypocritical, and that he does believe that private platforms should be able to deny service in certain cases based on the political views of the individual -- it's just that it seems he supports it when those political views diverge from his own. Carr seems to suggest that an appropriate standard is when someone has been "convicted" of certain crimes. I do wonder, then, if he thinks that no one in prison for murder should have access to phone lines. I mean, that's an area that he, as an FCC Commissioner even has some direct say over. Should, say, Kyle Rittenhouse, who shot and killed some people in Wisconsin be denied access to any phone service?

Second, while I have explained many times why websites should have freedom about whose content they host and whose they do not, it gets much, much, trickier when we're not talking about hosting content, but the mere transmission of content. Zoom is little different from a telephone call. And yet, here, it's blocking people based on political complaints about the speaker's views and the crimes she committed 50 years ago. Even if you disagree with Khaled, and even if you condemn her actions 50 years ago, it seems like a stretch to say she shouldn't be allowed to take part in a Zoom webinar.

Filed Under: 1st amendment, brendan carr, content moderation, fcc, free speech, infrastructure, leila khaled, pflf, terrorism
Companies: zoom

AT&T Is Astroturfing The FCC In Support Of Trump's Dumb Attack On Social Media

from the fake-support-for-dumb-ideas dept

We've noted for a long time that telecom giants like Comcast and AT&T have been pushing (quite successfully) for massive deregulation of their own monopolies, while pushing for significant new regulation of the Silicon Valley giants whose ad revenues they've coveted for decades. As such, it wasn't surprising to see AT&T come out with a incredibly dumb blog post this week supporting Trump's legally dubious and hugely problematic executive order targeting social media giants. You know, the plan that not only isn't enforceable by the agencies supposedly tasked with enforcing it (the FCC), but that also risks creating a massive new censorship paradigm across the entire internet.

As Mike already noted, AT&T's post was a pile of bad faith nonsense, weirdly conflating net neutrality with the ham-fisted attack on Section 230. AT&T just got done deriding the FCC's relatively modest net neutrality rules as "government interference in the internet run amok." Yet here it is, advocating for a terrible plan that attempts to shovel the FCC into the role of regulating speech on social media, authority it simply doesn't have. For those that tracked the net neutrality fight, the intellectual calisthenics required here by folks like AT&T and its favorite FCC officials have been stunning, even for Trumpland:

By "momentum," Carr clearly means "intellectually-flimsy support by lobbyists employed by a telecom monopoly."

Folks like FCC boss Ajit Pai know damn well Trump's order is laughable and legally dubious, going against nearly every principle they spent the last decade claiming to stand for. But they're going through the motions anyway to avoid upsetting dear leader and derailing any future political prospects. As a result, the FCC is burning resources holding a public comment period on Trump's EO and the (equally laughable) petition from the NTIA.

Numerous folks have submitted their comments on the record (you can read Mike's here). That includes AT&T, which is apparently not only busy making intellectually inconsistent arguments, but is providing form letters to other organizations to try and get them to support Trump's crappy EO. Some folks digging through the comments noticed that a lot of these groups are submitting AT&T's form letters to the FCC... without bothering to proof read them first:

It is surely only a coincidence that several groups with links to AT&T all submitted the same exact letter:

This is a greasy lobbying tactic companies like AT&T have employed for years. In fact, we wrote a piece just about a decade ago busting AT&T for the exact same behavior. AT&T can routinely be found giving money to groups in exchange for support for problematic to downright terrible policies, be it be support for AT&T's latest merger, or the culling of any meaningful oversight of telecom monopolies. Often this includes the "co-opting" of even civil rights or consumer groups. Other times, it involves the creation of entirely bogus "consumer rights" or advocacy groups.

The goal is always the same: to create the illusion of broad support for what's almost always terrible tech policy that aids AT&T in some way.

This sort of "astroturfing" (fake grass roots) has been a problem nobody wants to fix. This being the Trump FCC, you shouldn't expect them to police this kind of gamesmanship with any sort of integrity. You'll recall that the FCC not only turned a blind eye as the telecom sector used dead, fake, or hijacked personalities to spam the FCC during the net neutrality repeal, it actively blocked law enforcement inquiries into who was behind them.

This corporate co-opting of what's often the only chance the public has to express their thought on the record plagues numerous agencies, not just the FCC. And given AT&T's still busy doing this sort of thing nearly a decade after being busted for the exact same thing, you can clearly see how important protecting the integrity of public policy discourse is for U.S. leaders. Granted if your arguments are sound on their merits (which the Trump EO most certainly isn't), you wouldn't need to generate fake support from dead people or co-opted organizations in the first place.

Filed Under: ajit pai, astroturf, brendan carr, comment, fake comments, fcc, ntia, section 230
Companies: at&t

One Of The Few Government Officials Who Actually Can 'Police Speech' Whines Ridiculously About Facebook's Oversight Board

from the not-a-good-look-brendan dept

Earlier this week I wrote about the official Facebook Oversight Board and why everyone hates it because everyone hates everything having to do with Facebook. As I noted, I don't think it will have much of an impact one way or the other, but I do think it's an interesting experiment in moving at least some moderation controls away from an internet company.

One of the strangest responses to the announcement, though, came from FCC Commissioner Brendan Carr, who went on a truly bizarre and misleading rant about how this was the "new speech police" in which he then called out individual members of the board to complain that some of them have (*gasp*!) criticized Imperial Number One Leader President Trump.

As I noted in my original post, there are a bunch of people on the board who I disagree with on a variety of policy positions, but that there would be no reasonable construction of such a board that was made up of people that everyone would universally agree with. What is true is that pretty much all of them (at least all of the ones whom I recognize or know) are people who I've found to be thoughtful, even when I've disagreed with them.

But what's much more stunning about this, is Carr's ridiculous framing of the board as "the new speech police." Everything about that is wrong -- and it's extra ridiculous coming from an FCC Commissioner who remains one of the very few government officials who is literally part of the speech police. Remember, the FCC's mandate allows it to enforce fines against broadcasters for "indecent or profane programming."

It is a violation of federal law to air obscene programming at any time. It is also a violation of federal law to broadcast indecent or profane programming during certain hours. The Federal Communications Commission (FCC) defines indecent speech as material that, in context, depicts or describes sexual or excretory organs or activities in terms patently offensive as measured by contemporary community standards for the broadcast medium.

Congress has given the FCC the responsibility for administratively enforcing the law that governs these types of broadcasts. The FCC has authority to issue civil monetary penalties, revoke a license or deny a renewal application. The FCC vigorously enforces this law where we find violations.

That's what the speech police look like.

The Facebook Oversight Board, on the other hand, is not that. Indeed, the whole point of the board is for a non-Facebook organization to review and potentially reverse Facebook's decisions to take down content (while at a later date, it may also review cases where Facebook decided to leave content up, the board very clearly stated that its initial work will be the opposite -- looking for cases where it thinks Facebook took down content it should not have).

Even more importantly, as discussed a million and a half times around here, Facebook is a private company, and not the government. It has its own 1st Amendment rights to moderate however it sees fit, even (as in this case) handing off some of those moderation powers to an outside board of experts. Indeed, an FCC Commissioner named (checks notes....) Brendan Carr, used to recognize this, and whined vociferously when Mark Zuckerberg suggested that perhaps the government should get involved in policing speech on the platform. At that time, he pointed out that Facebook is a private platform.

Facebook, a private company, is experimenting with a variety of means for content moderation. As we've long noted, content moderation at scale is impossible to do well because someone will always disagree. But part of the 1st Amendment rights of private companies is the ability to experiment and try things. That's the kind of thing you would think someone like Brendan Carr would support. But, since it's more fun to bash Facebook and cry "partisanship" that's what he's going to do.

Meanwhile, since Carr seems to think that no "speech police" should ever express any partisan opinions, and he's the literal speech police, does that mean that Carr will refrain from partisan hackery going forward? Given his public pronouncements cheering on this administration, and this entire partisan performance in which Republicans like Carr pretend that Facebook is somehow "anti-conservative," somehow I doubt it.

Filed Under: 1st amendment, brendan carr, content moderation, content moderation at scale, facebook oversight board, oversight board, speech police
Companies: facebook