FCC Commissioner Anna Gomez apparently is upset that FCC Chairman Brendan Carr plans to have the Commission issue some sort of "advisory opinion" regarding the meaning of parts of Section 230, perhaps Section 230(c)(2)(A) which limits the immunity enjoyed by Internet websites for restricting access to objectionable content to actions taken in "good faith." According to a statement Commissioner Gomez issued, she is concerned that "involvement of the FCC in interpreting Section 230 would represent an attempt to "increase government control of online speech."
She goes on to say: "It is meant to bully private social media companies to comply with direct demands from the administration," she said. "An advisory opinion like this signals what the FCC already knows. It has little to no authority to weigh in on this complex issue. That's why this is a vague and weak effort. Only Congress can change and amend the law that gave us the internet as we know it today."
A few quick reactions. First, I don't recall Ms. Gomez voicing any concerns when the Biden administration was "bullying" social media companies to deplatform posters or restrict access to content, for example, with respect to the origin of COVID-19, years-long school closings, business shutdown mandates, and so forth. Meta's Mark Zuckerberg now says, "the government pressure was wrong" and he "regrets" that Facebook "was not more outspoken about it." For plenty more regarding Biden administration bullying of social media companies, including Twitter (nee X) and Facebook, see the opinions in the Supreme Court's Murthy v. Missouri decision.
Regardless of whatever reasons Ms. Gomez had in the past for not speaking out against bullying of social media companies by the government, her present concern would be more credible if, at a minimum, she would join Mr. Zuckerberg in expressing regret regarding the previous administration's content suppression actions.
Second, if the FCC, in fact, issues some sort of advisory opinion regarding its understanding of the meaning of the Section 230 immunity provision, its action at least would be done in an open manner and be subject to public scrutiny. Of course, this is much different than the hidden behind closed door efforts of the Biden administration that took place via private emails and telephone conversations. Again, on this point check with Mr. Zuckerberg.
Finally, because the FCC is not granted authority to enforce Section 230, and because after Loper Bright, the FCC no longer will receive Chevron deference for its statutory interpretations, the extent to which a court will accord any weight at all to the FCC's advisory opinion regarding Section 230's meaning likely will depend on application of the factors set forth in the Supreme Court's pre-Chevron Skidmore v. Swift & Co. decision. In Loper Bright, the Supreme Court recognized that even after Chevron's demise, in accordance with Swift, courts still should consider agency views for their “power to persuade, if lacking power to control.” Among those factors relevant to the power of an agency's statutory interpretation to persuade are “the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements."
So, while a court most likely won't simply defer to the FCC's views regarding any Section 230 interpretations it offers in the form of an advisory opinion or the like, it might accord them some weight if it finds them persuasive. By the same token, should Commissioner Gomez offer her own views, it's possible a court might find them persuasive.
But, for myself, I would find Ms. Gomez professions of alarm regarding her claims of "bullying" more persuasive had she sounded the alarm bells regarding the previous administration's content suppression efforts – or if now, Zuckerberg-like, she would at least acknowledge that what went down behind closed doors then was wrong.
Posts
