Power to Persuade: The FCC’s Authority to Interpret Section 230 Post-Loper Bright

In a November 21 FedSoc Blog post, the Phoenix Center’s Lawrence J. Spiwak convincingly argued that the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo (2024) eliminated the Federal Communications Commission’s power to make binding authoritative legal interpretations of federal statutes. However, Mr. Spiwak appears to overstate the case when he writes that Loper Bright “encompass[es] any effort by the FCC to interpret Section 230” of the Communications Decency Act. Loper Bright recognized that agencies retain the power to interpret the meaning of statutes within their jurisdiction and that, pursuant to Skidmore v. Swift & Co. (1944), courts still should consider agency views for their “power to persuade, if lacking power to control.” The FCC can, under Section 201(b) of the Communications Act exercise the power to interpret Section 230 through policy statements, declaratory rulings, or published reports.

[Seth L. Cooper is Director of Policy Studies & Senior Fellow at The Free State Foundation]