Carr Asks if State Laws Challenge CDA S. 230 Immunity

FCC Commissioner Brendan Carr asked whether state laws on online content moderation could open the door to weakening Communications Decency Act Section 230 immunity. Moderating a New Civil Liberties Alliance discussion Tuesday, Carr noted laws in Florida and potentially in Texas provide speech protections that might override 230.

There’s a potential constitutional issue if a federal statute like here preempts a state law seeking to protect residents from abuse of other private entities, said UCLA law professor Eugene Volokh. “What happens when Congress preempts those laws?” he asked. “Should we treat that as a form of government action that is subject to First Amendment protection?”

If there’s more speech protection through state law, the theory is the First Amendment would operate to block this section from interfering, said Carr. “There’s a plausible argument to that effect,” said Volokh. Under Article VI of the Constitution, 230 would probably win out against state public accommodation laws, he said: If Congress preempts a state ordinance, there’s an argument that the preemption is a First Amendment or 14th Amendment violation because it authorizes removal of state or local measures.

Section 230 gives rise to constitutional issues without the question of federal preemption, argued Columbia Law School professor Philip Hamburger. There’s a lot of confusion about this statute and the First Amendment not barring private censorship, he said. Hamburger would “hardly disagree” that private entities have a right to censor, but the problem is government “passing its regulatory functions off” to others, platforms here. He noted Congress isn’t directly imposing censorship, but it’s preferring one group’s speech over another’s: “The government is boosting one set of speakers over another, which does conflict” with speaker discrimination laws.

Congress isn’t shifting censorship power, argued Volokh: It’s recognizing and protecting long-standing rights. Congress is saying platforms are free to do what platforms have done historically: to control what goes on their platforms, he added. That doesn’t transform private action into state action, he said. The section provides a generalized protection that isn’t available to other speakers and platforms, which has a “whole host of dangers,” said Hamburger.

Carr highlighted a “potentially significant and underappreciated” issue: 230 protects only covered entities from liability for monetary damages when they restrict speech. Under that theory, an entity could seek an injunction against a website from moderating certain content, Carr said. It can be interpreted that 230 isn’t a bar to injunctive relief, so it can’t block one private entity’s claim against another, he added. Carr suggested this law has established that private censorship is legal: “Section 230 operates as both a sword and a shield as a statutory provision when it comes to censorship.”