from the not-how-any-of-this-works dept
When Donald Trump announced that he was appointing current FCC Commissioner Brendan Carr to be the next chair of the FCC, it was no surprise. Nor was it a surprise that Trump tried to play up that Carr was a “warrior for free speech.”
Commissioner Carr is a warrior for Free Speech, and has fought against the regulatory Lawfare that has stifled Americans’ Freedoms, and held back our Economy.
However, this is all projection, as with so much in the upcoming Trump administration. In reality, Brendan Carr may be the biggest threat to free speech in our government in a long while. And he’s not being shy about it.
Carr is abusing the power of his position to pressure companies to censor speech he disagrees with, all while cloaking it in the language of “free speech.” As an FCC commissioner, he has significant regulatory authority over broadcasters, and he’s wielding that power to push his preferred political agenda. He has no real authority over internet companies, but he’s pretending he does. He’s threatening broadcasters and social media companies alike, telling them there will be consequences if they don’t toe his line.
In this post, we’ll expose the details of Carr’s censorial agenda and the deceptive tactics he’s using to achieve it. Carr may claim to be a “free speech warrior,” but his actions show him to be the exact opposite. He is, as the Verge’s Nilay Patel aptly put it, “the most direct and sustained threat to the First Amendment and the freedom of the press any of us will ever experience.”
Threats to pull licenses and the “equal time rule”
First, we’ll detail an “easy” example around broadcast licenses, before getting into the much more thorny areas around content moderation and fact-checking. Carr has repeatedly claimed that he supports investigating and potentially pulling NBC’s “license” for having Kamala Harris show up on Saturday Night Live the weekend before the election. He claims that this violates the FCC’s “equal time rule.”
What he’s really doing: Telling broadcast channels not to platform candidates he doesn’t like or they will face expensive “investigations” and threats.
What things are factually wrong: NBC has no broadcast license to pull. Broadcast licenses are held by local affiliates who contract with NBC. NBC does own twelve affiliates, but the vast majority of NBC affiliates (223 of them) are not owned by NBC. Carr knows this. But he’s seen Donald Trump argue that NBC, CBS, and ABC should all have their (non-existent) licenses pulled at various times, and so he’s claiming the same thing.
Also, NBC did not violate the equal time rule, because it gave Donald Trump an equivalent amount of free time on its affiliates following a NASCAR race the next day. It also gave free time to Virginia Senate candidate Hung Cao, because his opponent Tim Kaine also appeared on SNL that night (though only to mock how forgettable Tim Kaine is).
Notably, in both cases, Trump and Cao got to deliver their own words in the form of ads to audiences. In contrast, both Harris and Kaine delivered lines scripted for them by SNL’s writers to be a part of a joke. So even if you want to be specific, it sounds like the GOP candidates got a much better deal.
Why this is all nonsense: First off, Republicans like Carr historically have loathed the equal time rule. It’s an offshoot of the Fairness Doctrine, a problematic concept that Republicans have long complained was unconstitutional, and which they supported killing when President Reagan effectively did so.
The equal time rule was created to ensure fair treatment of political candidates, not as a tool for government officials to bully the media. Carr is twisting a narrow regulation far beyond its intended purpose.
There is a strong belief, most strongly pushed in the GOP circles Carr inhabits, that the equal time rule would be found unconstitutional should it be challenged again and reach the Supreme Court. Under the decision in the Red Lion case, the Supreme Court blessed such restrictions only on broadcast spectrum, solely because of its scarcity.
Where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish. If 100 persons want broad cast licenses but there are only 10 frequencies to allocate, all of them may have the same “right” to a license; but if there is to be any effective communication by radio, only a few can be licensed and the rest must be barred from the airwaves. It would be strange if the First Amendment, aimed at protecting and furthering communications, prevented the Government from making radio communication possible by requiring licenses to broadcast and by limiting the number of licenses so as not to overcrowd the spectrum
But in a world where everyone can reach anyone via the internet, this argument is likely to hold a lot less weight.
Also, historically, candidates have appeared on SNL and elsewhere without a peep. In 2008, John McCain appeared on SNL twice and the only comment from the Obama side was to praise McCain’s comedic skills.
Threatening to revoke broadcast licenses over unfavorable coverage is a blatant First Amendment violation. The government cannot use its licensing power to control or punish the speech of private actors. Carr surely knows this but doesn’t seem to care.
His threats are likely to have a chilling effect, with broadcasters self-censoring to avoid his ire. This is textbook government overreach and abuse of power to restrict free speech.
The bottom line: The clear message from Carr here is that if any TV station platforms speech he disagrees with, he will abuse his power as FCC chair to demand costly concessions from them in order to help those he supports. What this will likely mean in reality is self-censorship by broadcasters, avoiding platforming anyone Carr deems to be a problem to avoid having to deal with threats.
So, without doing anything directly (and he has little real power here at all), Carr gets to use a rule at the FCC which he knows is likely unconstitutional to get broadcast TV networks to choose to avoid platforming Democrats.
It’s pure censorship.
Threats to social media companies for fact-checking and attacks on Section 230
This one is even more complicated, but also even more dangerous. Right around the time when Trump announced Carr, Carr was crowing about a letter he had sent to Meta, Google, Apple, and Microsoft accusing them of “censorship” for partnering with NewsGuard, a company that gives its opinion about the trustworthiness of various news organizations.
In the letter, he argues that any content moderation is a form of “censorship” that violates the First Amendment rights of Americans. He claims that partnering with NewsGuard is evidence of such censorship, that Section 230 requires moderation be “in good faith” and that using NewsGuard somehow removes that good faith requirement.
Recently, he resummarized these points (in an even more misleading fashion) in a reply tweet to RFK Jr’s former running mate, Nicole Shanahan.
What he’s really doing: Telling internet companies that if they moderate things in a way he doesn’t like, he will use the power of the state to punish them. This includes fact-checking things in a way he dislikes, or calling out problematic sources in a way he dislikes.
What things are factually wrong: Oh so much. First off, the FCC has no authority over Section 230. He is pretending it does because one of his staffers during the last Trump administration conspired with some other Section 230 haters to get the admin to “ask” the FCC to see if it could do a rulemaking on 230.
Congress was pretty clear when it passed Section 230 that its direct intent was that the FCC not have authority over internet companies. Indeed, when Rep. Chris Cox introduced what became Section 230, it explicitly called out that the FCC shall not be authorized to regulate internet content services:
Declares that nothing in this Act shall be construed to authorize Federal Communications Commission regulation of the content of such services.
Cox made this even clearer during the floor debate on the bill, saying:
It will establish as the policy of the United States that we do not wish to have content regulation by the Federal Government of what is on the Internet, that we do not wish to have a Federal Computer Commission with an army of bureaucrats regulating the Internet because frankly the Internet has grown up to be what it is without that kind of help from the Government
The legislative history makes Congress’ intent crystal clear — they did not want the government regulating online speech. Yet that’s exactly what Carr is trying to do, in direct contradiction of the law.
Second, Section 230 does not require “good faith,” as Carr claims. The important parts of Section 230 are sections (c)(1) establishing that no internet service or user of a service can be held liable as the publisher and (c)(2) which talks about no liability for good faith moderation on content that the sites (not the government) find “otherwise objectionable.”
Courts have long established that (c)(1), which has no “good faith” claim, is actually the operative clause for protecting moderation decisions. Carr’s misleading quoting of (c)(2) ignores that (c)(1) already protects most moderation and does not require “good faith.”
And, even if “good faith” did somehow apply to moderation efforts, the only cases where that’s actually become an issue were in rare cases like the Malwarebytes case, where a court said that if moderation was done for anti-competitive purposes, it might not be in “good faith.”
Also, the idea that relying on NewsGuard “puts your 230 protections in jeopardy” is nonsense. Again, even ignoring everything above, there is no transitive property here where even if you could argue (and you really can’t) that NewsGuard’s opinions are “in bad faith” that this then transitions to social media moderation, and then on top of that “removes” 230. That’s literally not how any of this works.
Finally, and perhaps most importantly, private companies making editorial decisions about what content they allow on their own private property is not (and cannot be!) taking away First Amendment rights. The First Amendment restricts the government, not private property owners from making their own editorial decisions.
Why this is all nonsense: Earlier this year, we discussed the GOP’s weird infatuation with NewsGuard. Remember, NewsGuard was started by former Wall Street Journal publisher L. Gordon Crovitz, who is a well-known conservative voice. I repeat: he was the WSJ’s publisher for many years and wrote column after column in support of standard GOP talking points.
But, more importantly, all that NewsGuard does is give its opinion. It is literally using its free speech rights to express an opinion on the quality and trustworthiness of various news organizations. What the GOP is mad about is that sometimes (though not always!) it has rated some of the GOP’s preferred news sources as untrustworthy.
And apparently that kind of speech must be punished.
But anyone is free to agree or disagree with NewsGuard’s ranking system (I did so quite a lot in my last post on them, and some people at NewsGuard got upset with me about it, but that’s just everyone expressing their opinions).
You know? The marketplace of ideas.
What Carr is arguing here is (1) that NewsGuard’s opinions are somehow illegal, (2) that relying on them violates the free speech of Americans and (3) that companies that do so could then lose their Section 230 protections.
All of that is bullshit. NewsGuard’s opinions are opinions. They are speech. Whether or not social media companies (or anyone else) rely on them is also their free speech. I think Carr’s opinions are utter nonsense, and I can back that up with an explanation of why. And that’s all free speech.
But Carr is the one arguing that NewsGuard’s speech is somehow illegal because it sometimes calls out news orgs he likes as being full of shit. He’s literally trying to either destroy NewsGuard for expressing an opinion (which raises First Amendment questions on its own) or pressuring big tech companies to stop using NewsGuard as part of their processes for determining how trustworthy certain news is.
But, again, companies get to use their own First Amendment rights of association to determine if they wish to use NewsGuard as part of their editorial discretion or not.
Threatening to punish tech companies by somehow removing their Section 230 protections for using NewsGuard is an attempt to step in and remove their rights to punish them for expressing their own editorial discretion.
Indeed, in the Murthy v. Missouri case (where Carr was very much on the side of Missouri), the states directly claimed that President Biden threatening to remove Section 230 protections was evidence of government coercion which violated the First Amendment. Yet, here, Carr sees no problem doing the exact same thing.
And that’s not even getting into how little authority the FCC actually has here. I pointed out above that with the history of 230, it was clear that it was intended to make sure the FCC had no authority over the internet (which is also supported by the Supreme Court’s Red Lion ruling regarding scarcity and abundance). But also just this year, the Supreme Court’s decision in Loper Bright made it even more abundantly clear that the FCC has no authority to issue rulemakings on things not explicitly given to them by Congress.
Last week, even the folks at the Federalist Society called out Carr’s nonsense on this point. In a piece by Lawrence Spiwak, he explains that after the Loper Bright ruling (that took away Chevron Deference) the FCC clearly has no authority at all to rule on Section 230.
Perhaps the biggest impediment to any effort to have the FCC write definitive rules about the meaning of Section 230 is the Supreme Court’s rejection of Chevron last term in Loper Bright Enterprises v. Raimondo. There, the Court made it crystal clear that it is the exclusive role of the courts—and not the administrative state—to interpret statutes. As the Court observed, “even when an ambiguity happens to implicate a technical matter, it does not follow that Congress has taken the power to authoritatively interpret the statute from the courts and given it to [an administrative] agency. Congress expects courts to handle technical statutory questions . . . .” The Court’s rationale was straightforward:
Courts interpret statutes, no matter the context, based on the traditional tools of statutory construction, not individual policy preferences. Indeed, the Framers crafted the Constitution to ensure that federal judges could exercise judgment free from the influence of the political branches. They were to construe the law with “[c]lear heads . . . and honest hearts,” not with an eye to policy preferences that had not made it into the statute.
Thus, the message of Loper Bright to the FCC is clear: regardless of your political desires, interpreting Section 230 is not your job. Loper Bright, in plain terms, put the kibosh on Johnson’s argument that it is the FCC’s job “to determine whether courts have appropriately interpreted its proper scope.”
There’s even more here, but this piece is getting long enough.
The bottom line: Again, Carr is misleading people with layer upon layer of nonsense. But all he’s really doing is threatening to use the power of the government to punish companies for First Amendment-protected expression he dislikes.
The goal, again, is to get these companies to censor in advance. It’s to get them to agree not to moderate or even fact-check content he supports, taking away the free speech rights of those who would do so.
Carr is smart and he knows exactly what he’s doing here. He is couching his extreme censorial desires in the language of free speech, knowing that most people won’t know enough or understand the details and nuances to recognize what he’s doing.
But he is rushing in to be America’s top censor, and he’s the biggest threat to the First Amendment we’ve seen in quite a long time.
Filed Under: 1st amendment, authority, brendan carr, broadcast licenses, censorship, content moderation, equal time, fact checking, fcc, free speech, loper bright, section 230
