In an unexpected move, the Trump administration has abruptly withdrawn its re-nomination of Michael O’Rielly to the Federal Communications Commission, days after O’Rielly signaled that he was troubled by the prospect of First Amendment policing of social media companies’ content.

It was O’Rielly’s third nomination to the FCC; he has served on the commission since 2013. His renomination had been approved by the Senate Commerce Committee but had yet to be considered by the full Senate. A hold was recently placed upon that consideration by Oklahoma Republican Senator James Inhofe, who has said that he would not vote in favor of moving the nomination forward until O’Rielly committed to vote against the FCC’s unanimous decision to allow Ligado Networks to operate a terrestrial 5G network that the Department of Defense has opposed.

Large social media companies have drawn conservative claims of censorship and been the target of President Donald Trump’s ire of late, with efforts by Twitter and Facebook to fact-check or even remove misinformation that the president tweets or his campaign shares. On May 28, he issued an executive order that the Commerce Department should ask the FCC, an independent agency, to review and “clarify” the section of law under which social media platforms are legally protected from liability for the content which their users post.

On Monday, the FCC put up for public comment the petition for rulemaking that was submitted by the Department of Commerce, asking the FCC to reconsider the interpretation of Section 230 of the Communications Decency Act of 1996.

Republican Commissioner Brendan Carr has signaled his support of additional regulation of Big Tech platforms and laid out his thoughts in a Newsweek contribution that focused on transparency, accountability and user empowerment.

“While social media can be frustrating, turning the FCC into the President’s speech police is not the answer,” Democrat Commissioner Jessica Rosenworcel said in recent remarks at RightsCon online. She went on to call the president’s executive order “an invitation from the President for the FCC to chill online speech and organize it in his favor.”

There’s speculation that the White House’s nomination withdrawal is related to recent public remarks by O’Rielly at a virtual event hosted by Media Institute, in which he indicated his wariness of demands that companies “curate or publish speech in a certain way.” He hedged his remarks by saying that they were “not in any way directed toward President Trump or those in the White House, who are fully within their rights to call for the review of any federal statute’s application, the result of which would be subject to applicable statutory and constitutional guardrails.” Instead, O’Rielly said he was “very troubled by certain opportunists elsewhere who claim to be the First Amendment’s biggest heroes but only come to its defense when convenient and constantly shift its meaning to fit their current political objectives.

“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. 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,'” O’Rielly said.

After the news of the nomination withdrawn became public, O’Rielly received support from The Wall Street Journal‘s editorial board, who wrote that he had “run afoul of new regulators on the right” and that “The decision speaks better of Mr. O’Rielly than of the President.” Sen. Barbara Comstock tweeted her support of O’Rielly as well.

Preston Padden, a longtime veteran of Washington communications and broadcast policy circles, tweeted that the White House’s action was “the worst thing I ever have seen. … I fear for the independence of the FCC.”

 

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Categories Federal Communications Commission, Michael O'Rielly, Policy
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