By Mike Masnick
We’ve written a few times about Nathan Simington, who is currently nominated to take over Michael O’Rielly’s seat at the FCC. As you’ll recall, O’Rielly’s renomination was withdrawn after he dared to give a talk in which he noted, accurately, that the 1st Amendment means that the government cannot regulate how private companies handle content moderation. Simington, in contrast to O’Rielly, has been at the center of various efforts to force social media companies to host speech they do not wish to host (a clear violation of the 1st Amendment, which does not allow for the government to compel speech).
Simington was the guy who apparently wrote the original executive order that kicked off the ridiculous (and still unconstitutional) FCC review process of Section 230. He also works at NTIA, which is run by Adam Candeub, a guy who has spent the last few years attacking (or misrepresenting) Section 230, after he filed a failed lawsuit against Twitter on behalf of a white supremacist. When the lawsuit was filed, Candeub appeared not to understand 230 when I engaged with him in an email exchange. Since then he’s spent the intervening years, trying to change 230 to match his false belief of what it should be.
So, perhaps it shouldn’t be too surprising that it’s now been revealed that Simington and Candeub appeared to spend some time over the summer trying to get Fox News’ bloviating talking heads to start attacking Section 230 as well, hoping that this would spur the FCC on towards action (again, which legally it cannot do) against the law.
Simington, a senior adviser in a key Commerce Department tech agency, wrote that the popular Fox News host could help sway the FCC to act on Trump’s proposal before Election Day. He also suggested that democracy hinged on the ability of the commission — which has not traditionally regulated social media — to target Silicon Valley companies.
The actual letter to a Fox News staffer, in which Simington notes that this is part of a scheme with Candeub (who is cc’d) is really stunning. Having a government official asking a media personality to assist the government in pushing through an unconstitutional attack on the 1st Amendment is staggering — and should immediately raise questions as to why either Simington or Candeub are part of the government. Simington flat out admits that he’s trying to force the FCC to take action to help support the President and others “down ballot” in the election.
That is not supposed to be how government officials act. Campaigning/electioneering efforts are not supposed to be done by current government staff who are paid by our taxpayer dollars. This is a hugely problematic stance, and should call into question both Simington and Candeub’s role in government. It certainly should preclude Simington from being considered for a position on the FCC itself.
As discussed, my boss, Dept. Ass’t Sec’y Adam Candeub (CC’d), is strategizing about how
best to present the NTIA’s petition to the FCC re CDA 230. We hope that FCC rulemaking
will uphold press and communication freedoms while restraining social media companies
from behavior that, absent certain case law re CDA 230, would be illegal.
As you know, this is a hot issue right now, not merely per the President’s major social media
executive order, but also (1) Senator Cruz’s recent actions re Twitter, coming out of his long-standing concerns about the partiality and bias emerging from social media’s de facto content
creation via moderation, promotion and demotion, and (2) Senator Hawley’s new social media
We therefore hope that there might be some way of engaging with Ms. Ingraham on our piece
of this issue. Any additional support we might be able to obtain could help to get the FCC on
board more quickly and thereby ensure a freer, fairer social media landscape going into the
elections this fall. This is of concern both to the presidency and also down-ballot, and given
the emerging role of social media as a replacement for mass media, our democracy will be
weakened if we cannot respond to this issue quickly and effectively.
If you have some time tomorrow, I’d love to talk further about this, whether re engaging with
Ms. Ingraham or generally for our own planning.
Senator Richard Blumenthal (a long term vocal critic of Section 230) seems to recognize how problematic this is:
“This email shows that Mr. Simington was an active and eager soldier in President Trump’s attempted assault on the First Amendment,” Blumenthal said in a statement to POLITICO. “Mr. Simington was willing to bully the very agency he’s been nominated to join in order to do the electoral bidding of the Republican party on the taxpayer dime.
“I am demanding that Mr. Simington explain himself in follow-up questions for the record, and I certainly hope he will be more forthcoming in his written responses than he was during his hearing,”
In any normal administration this would be a massive scandal, abusing the power of government to help a specific party/candidate. Remember all the (mostly exaggerated) fuss about the IRS paying extra attention to conservative non-profits? That was one of the biggest scandals of the Obama era, in part because it was government employees supposedly making decisions based on politics (even though the details showed it wasn’t quite that bad). This is worse. Here they are flat out admitting that they are trying to work with Fox News to use the levers of government to unconstitutionally change the law in order to help their preferred political party win in an election.