Reason Roundup

FCC Won't Fulfill Trump Order for 'Regulations to Clarify' Section 230

Plus: Trump concedes on reinstated Twitter account, Cabinet resignations keep coming, and more...

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upiphotostwo749091 | CHIP SOMODEVILLA/UPI/Newscom
(CHIP SOMODEVILLA/UPI/Newscom)

Trump's Section 230 plans thwarted again (thank goodness). It looks like Federal Communications Commission (FCC) Chairman Ajit Pai never quite found the time to "propose regulations to clarify" the meaning of Section 230, as he was instructed to do by President Donald Trump in a summer executive order. Pai told Protocol and C-SPAN that with Trump's presidency coming to an end, he would not be moving forward with new FCC rule-making about the internet law.

The full interview with Pai won't be aired until this weekend. But Protocol has published some highlights, including this exchange:

On Oct. 15, you said that you intend to move forward with a rule-making for clarity on Section 230. What's the status of that?

The status is that I do not intend to move forward with the notice of proposed rule-making at the FCC.

Pai—who has generally been respectful of free speech and free markets in his FCC tenure—has never shared some of his colleagues' enthusiasm for gutting Section 230, and was (thankfully) never well-suited to do Trump's bidding on this front. How it would have played out if Trump got another term is anyone's guess, but in this reality, we're in the clear.

Pai told Protocol that with the Trump administration on the way out, it simply didn't make sense to carry forward with the rule-making. "Given the results of the election, there's simply not sufficient time to complete the administrative steps necessary in order to resolve the rule-making," he said. "Given that reality, I do not believe it's appropriate to move forward."

Asked to elaborate on his own thoughts about Section 230, Pai was a bit vague. But his answer illustrates what has always seemed to be the core of his objection to intervening: that whatever merits or not there were in Section 230 reform, it wasn't the FCC's place to weigh in.

If you could, what do you think should be done on Section 230?

There's now a bipartisan consensus among elected officials that the law should be changed. Obviously the president believes it should be repealed, President-elect Biden has campaigned repeatedly on its repeal, but within Congress there appears to be a consensus also that it should be revised or reformed in some way. Obviously in terms of changing the law, that's a decision for lawmakers to consider, but I do think there are certain bipartisan consensus areas forming regarding how it should be revised.

It's a very complicated issue, one that I think Congress will have to study and deliberate on very seriously. I personally would think about it more carefully in terms of the immunity provision, for example, but those are the kinds of things that I think the next administration and Congress will think about very carefully.

Pai's answer also illustrates an alarming truth about the war on Section 230: It's not going away when Trump leaves office. President-elect Joe Biden and a huge swath of Democrats are also eager to abolish or restrict it, albeit for generally different reasons than their Republican counterparts.

FREE MARKETS

Trump concedes on reinstated Twitter account as Cabinet members keep resigning. Facebook has indefinitely banned Trump's account and Twitter temporarily suspended it. Upon returning to Twitter on Thursday night, Trump posted a video conceding the 2020 election. "A new administration will be inaugurated on January 20th. My focus turns to ensuring a smooth, orderly, seamless transition of power," he says.

Meanwhile, a number of Trump's Cabinet members are making last-ditch attempts to disassociate with him. Transportation Secretary Elaine Chao and Education Secretary Betsy DeVos resigned on Thursday. On Wednesday night, former Acting White House Chief of Staff Mick Mulvaney, now U.S. special envoy to Northern Ireland, resigned.

Deputy National Security Adviser Matthew Pottinger, Deputy Assistant Secretary for Intelligence and Security at the Commerce Department John Costello, Acting Chairman of the White House Council of Economic Advisers Tyler Goodspeed, and Deputy Press Secretary Sarah Matthews have also resigned since Wednesday, as did the First Lady's Chief of Staff Stephanie Grisham and her Social Secretary Rickie Niceta.

FREE MINDS

Did Trump incite the Capitol riots? "Can President Trump be impeached and removed on the grounds of incitement?" ask Volokh Conspiracy bloggers Josh Blackman and Seth Barrett Tillman. "Both of us were shaken by the events of January 6, 2021. Over the past several days, President Trump has taken actions that heedlessly risked third-parties' violating trespassing laws, the destruction of public property in and around the Capitol, and the ability of federal officials and civil servants to perform their legal duties. Yet, we again feel an obligation to hit the pause button," the law professors write.

In this post, we consider only two factual allegations with respect to incitement. First, on December 19, President Trump tweeted, "Be There. Will be wild!" Second, on the morning of January 6, Trump gave a speech on the White House Ellipse that stretched more than an hour.

Given the requirement of imminence, our view is that Trump's December 19 tweet, about an event more than two weeks away, would not be sufficient under Brandenburg's incitement standard. The speech he gave the morning of January 6 on the White House Ellipse, however, presents a closer call. You can find the full transcript of his remarks here. We think the final two minutes of the speech are the most salient portions for an incitement analysis, starting at 1:35:00.

[…] Trump makes two relevant points. First, he said, "And we fight. We fight like Hell and if you don't fight like Hell, you're not going to have a country anymore." The better view, all things considered, is that Trump was doing no more than telling his supporters to engage in constitutionally protected speech, and not telling his supporters to physically "fight." Here, the "fight" referred to a legal, or political process, to obtain "election security." His earlier reference to "cheering" on the "brave Senators" reinforces this reading. We don't think any court or other neutral adjudicator could fairly construe "fight" to mean a physical brawl.

Many press accounts have taken the "fight like hell" comment out of context. For example, a reporter asked Michael Sherwin, the acting U.S. Attorney for the District of Columbia whether President Trump, "who had urged the crowd to 'fight like hell,' before the rioting began," could be criminally charged. Sherwin replied, "We are looking at all actors here, and anyone that had a role, if the evidence fits the element of a crime, they're going to be charged." The "fight like hell" comment cannot from the basis of an incitement charge. The more difficult comment is Trump's urging people to walk to the Capitol.

Trump said "we're going to walk down Pennsylvania Avenue." He continued: "we're going to the Capitol and we're going to try and give . . . our Republicans . . . the kind of pride and boldness that they need to take back our country. So let's walk down Pennsylvania Avenue." (We used ellipses to omit Trump's verbal frolics and detours between tangents.) Here, the President was urging his constituents to march from the White House to the Capitol to protest the proceedings. The phrase "pride and boldness" could be interpreted as a call for physical boldness, but we are skeptical. The better view is that Trump was urging people to protest against "weak" Republicans who would not support objections to the certification of certain state's electoral vote. Indeed, Trump said that "Democrats are hopeless" and the people should not waste time on them.

(Volokh Conspiracy co-founder and UCLA law professor Eugene Volokh and Florida International University Professor Howard Wasserman also doubt that the speech qualifies as incitement.)

Blackman and Tillman go on to discuss the constitutionality and applicability of impeachment charges. Read the whole thing here.

QUICK HITS

  • Publishing house Simon & Schuster has opted to cancel Sen. Josh Hawley's (R–Mo.) book contract and he's trying to frame it as a First Amendment violation:

  • Capitol Police Officer Brian D. Sicknick has died from injuries he suffered "while physically engaging" with rioters on Wednesday. Sicknick "was only the fourth member of the force to be killed in the line of duty since its founding two centuries ago," says The New York Times. The circumstances surrounding Mr. Sicknick's death were not immediately clear, and the Capitol Police said only that he had 'passed away due to injuries sustained while on duty.'"
  • At least six state legislators (Republicans from Michigan, Missouri, Pennsylvania, Tennessee, Virginia, and West Virginia) were at the Capitol protests and riots on Wednesday. Video shows West Virginia Del. Derrick Evans among those breaking into the Capitol building (the lawmaker himself posted but then later deleted the video); others were merely at outside protests.
  • Tariffs on purses, makeup, and other goods from France are on hold.