Don't fall 🍁 for common carriage myths
Or common misconceptions about the FTC's authority and how Section 230 works.
It may still be 80 degrees out in D.C., but later this week it’s dropping to the 40s, so I think we’re allowed to say it finally feels like fall. And the best way to celebrate the fall, according to trusted experts (okay, just me), is by lighting a scented candle. Believe it or not, scented candles have been around for thousands of years — since early candles were often made of stinky animal fat, candlemakers would sometimes infuse their wax with incense or cinnamon to improve the smell.
The need for scented candles disappeared once electric light became widespread, but they made a comeback in the 1980s as a decoration and “mood enhancer.” Since then, candle manufacturers have become increasingly inventive with their olfactory creations (for better or for worse). Homesick, a candlemaker that originated by making candles with scents matching America’s 50 states, recently came out with a Bud Light-sponsored “tailgate” candle, as well as one meant to smell like an “Old Fashioned” donut from Dunkin’. Who knew a scented candle could be so specific?
Social Media Regulation. Late last week, we filed our latest and greatest brief debunking the canard that social media is like common carriage. This time we were filing in Texas, where HB 20—a sweeping collection of “disclosure” rules, “process” mandates, and must-carry obligations—is set to take effect against the largest social media websites in six weeks. As we did in Florida back in June, we filed our brief in support of a motion for preliminary injunction submitted by the Internet trade groups NetChoice and CCIA. See the press release for the brief here, and tweets on it here and here.
So far, Texas has taken an aggressive approach to defending HB 20 in court. The state has moved to conduct emergency discovery, and to extend the deadline to respond to the motion for preliminary injunction until after HB 20 goes into effect. Corbin wrote a Twitter thread on these cutthroat tactics. Texas, he noted, is in essence trying to use the lawsuit challenging its law to start enforcing its law. This approach is particularly insidious given that HB 20’s underlying purpose is clearly to target, harass, and punish the state's perceived political enemies.
FTC. Bilal appeared on the American Enterprise Institute’s “Explain to Shane” podcast to dig into changes at the FTC since Lina Khan became chair. Khan and other Democratic commissioners are dedicated to prohibiting more business conduct and expanding the grounds for challenging a merger. As Bilal explains, they’re aiming to do this by having the FTC issue binding legislative rules — something the Commission has only done once for “unfair methods of competition,” back in 1962.
Again, the FTC actually doesn’t actually have the legal authority to do this, as we explained in our lengthy comments to the FTC two weeks ago. Join us for a webinar next week debating this question — the first in a series of webinars about the FTC.
Section 230. House Democrats have proposed a new bill that would deny the key protection Section 230 to websites that make “personalized recommendations” for harmful content. Ironically, the bill would backfire, reducing moderation of harmful content, as Berin explains.
This week, Facebook whistleblower Frances Haugen echoed calls from Sens. Josh Hawley and Amy Klobuchar when she called for reforms to social media companies’ Section 230 protections. Berin explained to the Daily Caller why these proposals are misguided. He pointed out that while larger companies like Facebook could handle broader liability, such a policy would threaten budding competitors: “You’re going to get less private parties hosting user content, and you’re going to have services like Facebook who can manage that burden gain an advantage over services that can’t.”