FCC Commissioner O'Rielly replaced after opposing social media regulation

The US government has nominated NTIA advisor Nathan Simington to replace Commissioner Mike O’Rielly at its telecoms regulator, apparently because he opposed plans to tighten social media regulation.

This all goes back to the middle of last year, when US President Trump accused social media companies of selective censorship, targeted at conservative voices. Less than a year later Twitter appeared to prove his point by attaching warning labels to Trump’s own tweets, while permitting disinformation posted by politicians opposed to him.

Trump promptly issued an executive order addressing the protections enjoyed by social media companies under Section 230, specifically that internet platforms can’t be treated as publishers and thus be legally liable for the content they host. Trump’s position was that if social media companies are going to start making editorial decisions then they should be treated as publishers.

Part of the executive order compelled the National Telecommunications and Information Administration (NTIA) to petition the FCC to impose a bunch of new regulations on social media companies, which it eventually did in July. Here’s an excerpt from that petition which addresses the matter of protecting free speech online.

Many Americans follow the news, stay in touch with friends and family, and share their views on current events through social media and other online platforms. These platforms function, as the Supreme Court recognized, as a 21st century equivalent of the public square. Provision and control of the public square is a public trust. Because it entails selecting which speech gets heard and by whom, social media can assimilate a collective conversation into a corporate voice with a corporate point of view.

As the E.O. explains, “[w]hen large, powerful social media companies censor opinions with which they disagree, they exercise a dangerous power. They cease functioning as passive bulletin boards, and ought to be viewed and treated as content creators.”22 The Commission itself has previously recognized the importance of enabling “the widest possible dissemination of information from diverse and antagonistic sources” and “assuring that the public has access to a multiplicity of information sources” as internet regulations’ essential goal.

Unfortunately, large online platforms appear to engage in selective censorship that is harming our national discourse. The E.O. notes that “[t]ens of thousands of Americans have reported online platforms “flagging” content as inappropriate, even though it does not violate any stated terms of service” and is not unlawful. The platforms “mak[e] unannounced and unexplained changes to company policies that have the effect of disfavoring certain viewpoints and delet[e] content and entire accounts with no warning, no rationale, and no recourse.”

FCC Commissioner Brendan Carr has remarked, “there’s no question that [large social media platforms] are engaging in editorial conduct, that these are not neutral platforms.” Others have expressed shock that while large social media platforms will censor or fact-check constitutionally elected democratic leaders, many social media companies welcome and facilitate censorship by the Chinese Communist Party, thereby spreading disinformation and communist propaganda related to China’s mass imprisonment of religious minorities, the origins of the COVID-19 pandemic, and the pro-democracy protests in Hong Kong.

Unfortunately, few academic empirical studies exist of the phenomenon of social media bias. Much of social media’s overarching influence and power stems from the immunities it enjoys under expansive interpretations of section 230 of the Communications Decency Act,27 a provision Congress passed in 1996 at the beginning of the internet era. Many early cases, understandably protective of a nascent industry, read section 230’s protections expansively. But, given the maturing internet economy and emergence of dominant social media platforms, the FCC should re-examine section 230, as well as other provisions of the Communications Act of 1934. The FCC should determine how section 230 can best serve its goals of promoting internet diversity and a free flow of ideas, as well as holding dominant platforms accountable for their editorial decisions, in new market conditions and technologies that have emerged since the 1990s.

O’Rielly apparently didn’t share Carr’s position on the matter, however, making the following comments in a recent speech in reference to the First Amendment of the US Constitution. “The First Amendment protects us from limits on speech imposed by the government—not private actors—and we should all reject demands, in the name of the First Amendment, for private actors to curate or publish speech in a certain way,” said O’Rielly.

“Like it or not, the First Amendment’s protections apply to corporate entities, especially when they engage in editorial decision making.  I shudder to think of a day in which the Fairness Doctrine could be reincarnated for the Internet, especially at the ironic behest of so-called free speech “defenders.”  It is time to stop allowing purveyors of First Amendment gibberish to claim they support more speech, when their actions make clear that they would actually curtail it through government action.  These individuals demean and denigrate the values of our Constitution and must be held accountable for their doublespeak and dishonesty.”

Earlier in this passage O’Rielly stressed his comments were not directed at Trump specifically, but that’s hard to believe and at the very least they appear to be referring to his proxies. Either way, Trump seems to have decided this was an attack on him and did what he does, telling O’Rielly “you’re fired!”

Further evidence that this is all about social media censorship and Section 230 comes from reports that Simington was one of the main contributors to the executive order and the subsequent petition. In other words Trump seems to have replaced a commissioner who opposes his position on social media regulation with one who wholeheartedly supports it.

Americans often get themselves into a tangle over censorship, leaning so heavily on the First Amendment that they seem to think censorship by anyone other than the government is irrelevant. As the US general election draws nearer, the matter of social media censorship is becoming increasingly politicized. Social media is clearly the new public square and so it’s in the public interest for it to be as free as possible from corruption. If this new appointment helps ensure that, then it’s a good one.