The Trump FCC Can’t and Shouldn’t Be the Internet Speech Police

The Federal Communications Commission lacks the authority to interpret Section 230. Congress did not give the FCC any role in interpreting the law, or, importantly, in adopting rules to implement that interpretation. Section 230 concerns liability for various torts as litigated between private parties. The FCC has no role—only the parties and state and federal judges do. Indeed, the legislative history of Section 230 makes clear that Congress didn’t want the FCC to have any role with regard to Section 230 or with regulating online platforms.

But the plain language and legislative history of Section 230 are not the only hurdles to FCC authority here. The federal courts have been clear that when the FCC seeks to regulate content, as it would in this case, Congress must give it express authority. Another hurdle to the FCC regulating online platforms is its own precedent. The FCC can’t simultaneously forswear authority over internet access providers—which fall squarely under its subject-matter jurisdiction and which it had regulated in one way or another prior to the 2017 Order—and also claim it has authority to regulate online platforms nearly 24 years after Section 230 was passed.

The debate over whether Section 230 needs to be updated is an important one. But the proper venue for that debate is in Congress, not at the FCC, and not because of coercion from the Trump White House.

[Gigi Sohn is a Benton Senior Fellow and Public Advocate for the Benton Institute.]