Carr: Trump Lawsuits Raise ‘Interesting’ First Amendment Questions

President Donald Trump’s lawsuits against Facebook, Google and Twitter (see 2107070065) raise “an interesting argument” about when a private entity becomes a state actor subject to First Amendment restraints, FCC Commissioner Brendan Carr said Thursday. Supreme Court precedent establishes that a private entity effectively becomes a state actor when “sufficiently coordinating with government actors,” Carr said during an FCBA event: “We’ll see how that case plays out.” And there are examples of affirmative, anti-discrimination obligations placed on private entities that involve public accommodation law, said Carr. He described a spectrum of speech obligations for cases involving data roaming and cable’s must-carry provisions. It can be argued that social media companies are in the realm of the cable must-carry cases, he said. It’s time for Congress to close the gap between tech platforms’ corporate power and the lack of accountability, he argued. “Reform” for Communications Decency Act Section 230 is one “important piece,” he said, but it’s not sufficient. Big Tech also needs to provide more transparency, he said, voicing support for the Promoting Rights and Online Speech Protections to Ensure Every Consumer is Heard (Pro-Speech) Act (see 2106100070). The bill “pretty much nails it,” Carr said. Congress should also consider methods for banning pretextual content moderation and imposing affirmative, anti-discrimination obligations, he said. Trump’s legal complaints aren’t “frivolous,” said Free State Foundation President Randolph May. He noted Trump’s argument CDA Section 230 immunity “amounts to a delegation of authority by Congress that facilitates the companies’ censorship actions.” If correct, Big Tech companies can’t censor posts, May said, though he’s “not convinced at this point that Section 230’s grant of immunity, standing alone, is sufficient to make the Big Tech social media companies state actors.” It’s possible discovery “could uncover a trove of emails from various congressional officials urging the social media companies to take certain actions which the firms quickly took,” he added.