Jessell | Trump’s Order On Social Becomes Carr’s Folly

In all my years of following the FCC, I have never seen ambition so naked as I saw in Commissioner Brendan Carr last week.

After President Trump signed an executive order calling on the FCC to police social media companies for political bias, he put out a statement and made the TV rounds heralding the order as a stroke of genius, the way to remedy the wrongs of big social media like Twitter and Facebook.

“This is really welcome news,” he gushed on a segment with Lou Dobbs on Fox Business News. “Since the 2016 election, the far left has hopped from hoax to hoax to hoax to explain how it lost to President Trump at the ballot box.

“One thing they have done is looked to social media platforms,” Carr said. “They put pressure on them for the crime, in their view, of staying neutral in the 2016 election. They are committed to not letting their platforms stay neutral in the run up to 2020.”

Politico suggested that he is trying to “leapfrog” fellow Republican Michael O’Rielly on his way to the chairmanship of the FCC in the second Trump administration should there be one. He was so effusive in praise of the order I think he might be trying to leapfrog the FCC for an even bigger job elsewhere.

He certainly succeeded to getting Trump’s attention. The president retweeted Carr’s statement as well as the Dobbs interview.

Why do I think that Carr is speaking mostly out of ambition, not principle?

First off, he sounded like a partisan hack on the Dobbs show, taking about Democratic “hoaxes” and even going so far as to dredge up a Republican talking point on mail-in ballots (House Judiciary Chairman Jerry Nadler once opposed mail-in ballots, he said.)

But far more important, he is a communications attorney by trade. He is a former general counsel of the FCC. He knows that the FCC has no authority to meddle in social media content and, even if it did, it would have no authority to enforce any of its findings. What’s it going to do, revoke Twitter’s license?

He also knows that if the FCC is to gain oversight and enforcement duties, they would have to come from Congress, not the president and his legal skunkworks. If the FCC went ahead with social media regulations, it would be slammed by the federal courts.

The correct response to Trump’s order from any FCC official is to tell the president to go see Congress if you want the agency in the social media business. The politically correct response for Republican FCC officials is to say: “Boy, interesting idea. We will give that due consideration.” That is, in essence, what Chairman Ajit Pai and Commissioner Michael O’Rielly said.

Carr also knows that as a student of communications law, the FCC has been working hard over the past 40 years to extricate itself from content regulation of any kind. Right now, the only concerns are keeping broadcasters from airing obscenities and egregious hoaxes.

In 1987, the FCC, led by Republican Chairman Dennis Patrick, repealed the fairness doctrine, completing years of work begun by Patrick’s predecessor Mark Fowler.

The essence of that landmark decision was that TV and radio no longer had to be politically neutral platforms. They could be as opinionated and partisan as they wanted to be.

No longer would the FCC be put in the constitutionally troubling position of deciding what’s fair and what’s not.

President Reagan backed the FCC on the decision, even though he was warned by staff that scuttling the doctrine would expose him to more criticism from the left-leaning networks.

By the way, the repeal turned out to be a boon for conservatives as Rush Limbaugh and others took to the air to rally conservative thinkers (and non-thinkers) and, you could argue, eventually give rise to Trumpism.

Now, Carr would turn the fairness repeal on its head and use the FCC to police social media companies and make sure they are being perfectly neutral, that they not putting their thumb on the political scale through censoring or tagging user posts. In other words, he wants the FCC to ensure that they are fair.

According to a federal law known as Section 230, social media are not legally responsible for the user content they host, except for copyright infringement. They can’t, for instance, be sued for libel if one of their users libels somebody.

But there is a provision aimed at keeping the social media from devolving into an unmitigated cesspool.

Without risking their legal immunity, it says, social media companies may take “good faith” action to restrict access to posts they “considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable, whether or not such material is constitutionally protected.”

The immunity afforded by Section 230 is a privilege and it is hard to see how social media could function without it. Incidentally, Section 230 also protects websites with comment sections.

Carr would use the power to revoke that privilege just as the pre-Reagan FCCs used the power to revoke a broadcast license — to threaten media for not being fair.

Former ABC and Fox lobbyist Preston Padden made the point in a Wall Street Journal op-ed this week: “Conditioning key protections on compliance with a government content review would be censorship by a different name.”

Turning his back on the lessons of 1987, Carr believes — or says he believes — the FCC can serve as the place to judge political content in a non-political way.

He must know this is nonsense.

The FCC is, by its nature, a political body. All of its members are appointed by the president and, inevitably, the chairman and two members — a majority — are loyal members of the same party.

So, the FCC is going to look at any fairness complaint against social media through political eyes. And the majority is going to make its decisions along political lines. It’s the nature of the beast.

And they will get away with it because the good faith standard is mighty, mighty vague.

Some FCC majorities might see many of Trump tweets as “excessively violent, harassing or otherwise objectionable” and excuse Twitter and Facebook for taking action against them. Others might find everything Trump has ever tweeted as beyond reproach.

In a May 29 tweet, Carr said that Twitter is “punishing speakers [users like Trump] based on whether it approves or disapproves of their politics.”

In advocating for FCC intervention, Carr is opening the door for the agency to punish speakers (social media companies) based on whether they approve or disapprove of their politics.

By the way, given all that he has said, does anybody believe that Carr would be a fair arbiter of what’s fair and what’s not?

He has revealed himself to be totally in the tank for Trump.

In fact, I would argue that, if somehow the FCC does end up policing social media, he should recuse himself from any proceeding involving Twitter and Facebook.

Finally, Carr presents himself as a First Amendment champion.

In April, he was up on his soap box, blasting the dopey left-wing media watchdog Free Press for its ill-conceived petition to force broadcasters to censor or put disclaimers on statements by Trump and others concerning COVID-19 that are found to be false or scientifically suspect. The FCC made short work on the petition, dismissing it on First Amendment grounds at the staff level.

“It’s a dangerous and sweeping attempt by the left to weaponize the FCC against broadcasters and conservatives and politicians,” Carr told a Breitbart interviewer.

Yet, he willfully fails to recognize that Twitter and Facebook are private companies with full First Amendment rights, just like newspapers and broadcasters. They are allowed to post or not post anything they want on their platforms.

If Twitter’s Jack Dorsey wants to tag every Trump tweet with “Ignore this man; he’s a flaming idiot,” he has every right to do it.

It concerns me, as it does a great number of policymakers across the political spectrum, that Twitter and Facebook now have it both ways. They can profit by allowing all manner of misinformation, viciousness and defamation by users and, because of Section 230, they can escape all responsibility for it.

But what to do about it is a question for Congress — not Trump, the FCC or the striving Carr — to decide.

Rembering Mike Gravino

Throughout the endless debates over the incentive auction and channel repacking, the high-power TV broadcasters with major network affiliations and policymakers in Washington tried to ignore the interests of low-power TV broadcasters.

Mike Gravino made that impossible.

As founder of the LPTV Spectrum Rights Coalition, Gravino fought incessantly for the rights of LPTV and translator operators. His efforts culminated when the Congress finally cut LPTV and translator operators in on millions of dollars set aside for the post-auction channel repacking.

Last Saturday, Gravino’s voice was silenced by pancreatic cancer.

I did not know Mike well. I confess that as editor of TVNewsCheck I did not give him or the LPTV/translator world the attention it probably deserved, despite his entreaties.

So, I will share this remembrance from communications attorney and LPTV pioneer Michael Couzens of Oakland, Calif.:

To say that he was dogged would be to highly compliment our canine friends. Many found him abrasive, and said so. But they should ask themselves now: if a person is unknown and invisible, can they have an influence? Be effective?

Mike once lived near Eastern Market in Southeast Washington. From there, it was about a 30-minute run to the House Rayburn or Russell Senate Office Buildings.

I used to joke that legislative assistants had a signaling method, so that when he was seen coming down the hallway, they could hide under their desks or give the receptionist a reason why they were not there.

Mike’s accomplishments were significant. With an email newsletter, meetings at the NAB conventions, and informative brochures, he generously shared updates for all who might be interested in low-power television.

And he never forgot the TV translators and rural America. I’m writing this next to his baseball cap with the slogan “SAVE LPTV” and in smaller type “& TV Translators.”

His advocacy on the Hill worked in tandem with his staff encounters at the Federal Communications Commission. The D.C. presence was not lucrative, but often effective, a rare instance of lobbying for a positive public purpose.

Now Mike is wandering the Golden Hills. He will not see many members of Congress or legislative assistants there. For the most part, they are consigned to the Other Place. 

But should he run into the shade of an exemplary L.A., may he be granted one more opportunity to unleash his version of an uninhibited charm offensive.

Harry A. Jessell is editor at large of TVNewsCheck. He can be contacted at 973-701-1067 or here. You can read earlier columns here.