In this Columbia Journalism Review article, Fordham Law Professor Olivier Sylvain weighs in on the ambition of President-elect Donald Trump’s pick for chairman of the Federal Communications Commission, Brendan Carr, to regulate content moderation on social media.
In reality, the legal bureaucracy that cordons the FCC off from the executive branch represents a powerful check on Carr and the commission’s other Trump appointees. When I asked Olivier Sylvain, an administrative law scholar at Fordham University, about Carr’s ambition to regulate content moderation on social media by reinterpreting Section 230 of the Communications Decency Act, he replied, “You have to explain the agency’s decision to switch from saying you don’t have authority over something to saying you do, given all the steps you have to take when you change a position like that and the scrutiny it’s subject to, never mind the constitutional scrutiny,” he said. “You can’t just act willy-nilly.” (Carr did not respond to requests for comment.)
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It may be that Carr’s term as FCC chairman will have less to do with executing structural changes at the agency than fostering an environment of selective “public interest” enforcement that makes media companies and the journalists who work for them second-guess their coverage of the Trump administration. Sylvain, the Fordham legal scholar, said, “I have friends who are general counsels at media companies, and no matter how sketchy the legal theories are that we’re hearing, they’re still nervous because it’s still resources” that have to be spent on legal fees. “That’s part of the strategy, right? It’s to chill people into compliance—obedience beforehand.”