Section 5: Independent Regulatory Commissions
“In general, the President can appoint people to these commissions but cannot remove them, which makes them constitutionally problematic in light of the Constitution’s having vested federal executive power in the President.”
The President CAN remove them, for specific causes (inefficiency, neglect of duty, malfeasance.) The author is referring to the vesting clause of the Constitution when they claim that this is constitutionally problematic. The vesting clause gives executive power to the President.
However, the Supreme Court has upheld the constitutionality of these independent commissions. In Humphrey’s Executor v. United States (1935), the Court ruled that Congress can create independent agencies and restrict the President’s power to remove their members, as long as the agency performs quasi-legislative or quasi-judicial functions, rather than purely executive functions. This supports checks and balances.
Full contextual analysis of Section 5: Independent Regulatory Agencies here.
““The FCC,” writes Carr, “has an important role to play in addressing the threats to individual liberty posed by corporations that are abusing dominant positions in the market.” Nowhere is that clearer “than when it comes to Big Tech and its attempts to drive diverse political viewpoints from the digital town square.””
As I point out in Section 4.1 when Gilman proposes “holding Big Tech accountable”, the question is, accountable for what? I wrote, in part:
In June 2024, the Supreme Court threw out a lawsuit that would have restricted the government communicating with internet giants over what it saw a “misinformation”, because the majority opinion (written by Amy Coney Barrett) found that the two Republican-led states and social media users who filed the lawsuit against dozens of executive branch officials and agencies did not have legal right to do so, because they could not prove that government pressure had suppressed their free-speech rights.
Furthermore, if corporations are effectively people with regard to rights, social media companies are privately owned and allowed to platform (or not platform) whatever they want. In fact, most have a long history of not platforming hate speech. Not all speech qualifies as “free”, and it can be argued that harmful disinformation that could get people killed is NOT protected.
“For example, former president Trump filed a class action lawsuit against Twitter and the United States, alleging that the government coerced Twitter into suppressing speech in violation of the First Amendment; the complaint was dismissed on the grounds that Twitter was a private actor.” [Source]
Full contextual analysis of Section 5: Independent Regulatory Agencies here.
“In addition to taking unilateral action, Carr says, the FCC should work with Congress on legislative changes to ensure that “Internet companies no longer have carte blanche to censor protected speech while maintaining their Section 230 protections.”
This would amount to government control of social media. As I note above, private companies are not required to platform anything they don’t want to.
Section 230 protects online platforms from being held legally liable for content that users post on their sites. This means that companies like Facebook, Twitter, or YouTube aren’t treated as the publishers of user-generated content, and thus aren’t responsible for defamatory, illegal, or harmful posts made by third parties.
Here’s where the author contradicts themselves:
Section 230 also allows these platforms to moderate or remove content they find objectionable, offensive, or harmful, without being held liable for doing so. The law encourages “good faith” moderation efforts, allowing companies to remove harmful content while remaining shielded from lawsuits that might otherwise arise from such decisions.
Is the author proposing that the government be the arbiter of what is “objectionable, offensive, or harmful”?
Full contextual analysis of Section 5: Independent Regulatory Agencies here.