EFF Raises Concerns About Nathan Simington’s FCC Nomination

The EFF says that the FCC is not the speech police. Therefore, the EFF is raising serious concerns about Nathan Simington’s nomination.

It all started with a simple fact check. In response, Donald “Thin Skin” Trump vowed to retaliation for having his lies questioned. The next day, he signed an Executive Order the very next day demanding that Section 230 protections be stripped. At the time, it was big news that social media finally stood up against false information and flagged the comment. These days, this is quaint given that Trumps twitter account has been a constant fire hose of lies and deceit that’s currently racking up warning labels.

Still, that moment kicked off Trumps war on the Internet. The aim is to create special protections for Conservative voices that allows them to say anything, legal or otherwise, online without consequences. The FCC (Federal Communications Commission), for its part, flip-flopped on its hands off approach and laid out why it has the authority to kill Section 230. The reasoning they pushed is that platforms need to be politically “neutral” in order to enjoy Section 230 protections. There are absolutely no legal basis for this and that is not what Section 230 is about. Still, that’s what the Trump administration (and the FCC for that matter) is running with.

Now it seems that the Trump administration is trying to cement social media’s pro-Conservative bias. The administration is trying to nominate Nathan Simington to head up the regulator. This is causing concern for a lot of free speech advocates because Siminton is an architect of the administrations current war on the Internet. In response, the EFF (Electronic Frontier Foundation) is calling on the senate to block the nomination. From the EFF:

Simington’s nomination appears to be the culmination of a several-month project to transform the FCC and expand its purview in ways that threaten our civil liberties online. The Senate should not confirm him without asking some crucial questions about whether and how he will help ensure that the FCC does the public interest job Congress gave it, which is to expand broadband access, manage the public’s wireless spectrum to their benefit, and protect consumers when they use telecommunications services.

There’s good reason to worry: Simington was reportedly one of the legal architects behind the president’s recent executive order seeking to have the FCC issue “clarifying” regulations for social media platforms. The executive order purports to give the FCC authority to create rules to which social media platforms must adhere in order to enjoy liability protections under Section 230, the most important law protecting our free speech online. Section 230 protects online platforms from liability for the speech of their users, while protecting their flexibility to develop their own speech moderation policies. The Trump executive order would upend that flexibility.

The White House executive order reflects a long-running (and unproven) claim in conservative circles that social media platforms are biased against conservative users. Some lawmakers and commentators have even claimed that their biased moderation practices somehow strip social media platforms of their liability protections under Section 230. As early as 2018, Sen. Ted Cruz incorrectly told Facebook CEO Mark Zuckerberg that in order to be shielded by 230, a platform had to be a “neutral public forum.” In the years since then, members of Congress have introduced multiple bills purporting to condition platforms’ 230 immunity on “neutral” moderation policies. As we’ve explained to Congress, a law demanding that platforms moderate speech in a certain way would be unconstitutional. The misguided executive order has the same inherent flaw as the bills: the government cannot dictate online platforms’ speech policies.

It’s not the FCC’s job to police social media, and it’s also not the president’s job to tell it to. By design, the FCC is an independent agency and not subject to the president’s demands. But when Republican FCC commissioner Michael O’Rielly correctly pointed out that government efforts to control private actor speech were unconstitutional, he was quickly punished. O’Rielly wrote [pdf], “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.” The White House responded by withdrawing O’Rielly’s nomination and nominating Simington, one of the drafters of the executive order.

Some have speculated that the Trump administration has been trying to set as many fires as possible on the way out the door. This would be another example of this. The idea is to make the Biden presidency as difficult to manage as possible because Biden would not only have to focus so much effort on putting out those fires, but also have to contend with a very possible Republican controlled Senate on top of it all. The unfortunate thing in all of this is that this particular possible fire could have very real implications about online free speech.

Drew Wilson on Twitter: @icecube85 and Facebook.

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