Commissioner, regulate thyself: The incoming FCC chair is threatening to censor views he doesn't like

On Sunday, President-elect Donald Trump announced he would appoint Brendan Carr to chair the Federal Communications Commission, the independent government agency tasked with regulating the means of distribution (but not content) of radio, television, and the internet. Trump referred to Carr, who is currently a commissioner on the FCC, as a “warrior for Free Speech.”

But that honorific — as well as some of Carr’s own past statements about the First Amendment — stands in stark contrast to a threatening letter Carr sent last week to the CEOs of several tech companies asking for information about their relationship with NewsGuard, in order to “help inform FCC action.” NewsGuard is a private organization that conducts fact-checking and provides credibility ratings for news and information outlets. These ratings can be seen by users utilizing a browser plugin to help them assess news sources, and can be licensed by online services for various purposes including assisting in content moderation decisions.

In his letter, Carr accused the companies of being part of a “censorship cartel” along with “the Orwellian named” NewsGuard (and other private parties). Carr criticized specific editorial decisions by NewsGuard, and said that it labels information sources as “untrustworthy” or “high-risk” in an “apparent effort to suppress their information and viewpoints.” Calling NewsGuard’s activities “an affront to Americans’ constitutional freedoms,” he warned that the Trump administration could “review” the activities of tech companies and third-party organizations “that have acted to curtail [First Amendment] rights.”

But tech companies and private fact-checking groups are not curtailing anyone’s First Amendment rights. The First Amendment binds only government actors, not social media platforms or other private digital information services. Carr knows this, by his own admission: In April 2020, he tweeted, “Whether it’s the government shutting down speech (a 1A issue) or a private platform doing it (not 1A), these decisions aren’t made by an oracle of truth . . . More speech > Less speech.” 

Opposing overbearing content moderation as a normative free speech matter is one thing. Conflating a private entity’s content moderation choices with a violation of users’ First Amendment rights in an attempt to justify intrusive government action (including jawboning companies in his official capacity) is quite another.

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That’s not to say the First Amendment isn’t implicated here. But ironically, it is Carr himself who presents the actual threat to First Amendment rights by threatening government sanctions against constitutionally protected speech. As the Supreme Court’s majority opinion in NetChoice v. Moody made clear, the editorial content moderation decisions of social media platforms are protected by the First Amendment. And, of course, the Constitution protects the expression of groups like NewsGuard, which simply provide opinions on the credibility of content and information sources that other services may choose to adopt or ignore at their discretion. 

Carr’s message is unambiguous: NewsGuard’s expression and viewpoints are disfavored, and both NewsGuard and any expressive platform caught utilizing or adopting it are at risk of FCC retaliation. It’s difficult to imagine a more clear-cut attack on First Amendment rights than that—and again, Carr himself would seem to agree. 

“Pressuring social media companies into censoring . . . constitutionally-protected speech . . . is not how you protect democracy,” Carr posted on social media last month.  “[T]he First Amendment prohibits government officials from coercing private parties into suppressing protected speech.” That’s right. November Carr would do well to remember September Carr’s warning. 

Carr also took umbrage at Brazilian Supreme Court Justice Alexandre de Morales’ order that Elon Musk’s social media platform X block certain profiles within the country. “Too often,” Carr wrote, “social media companies would not only fail to push back on government requests to silence political speech, they would choose to censor it. Free speech is the counterweight to government control.” Indeed.

True concern for the First Amendment rights of Americans requires leaving subjective judgments on the credibility and publication-worthiness of speech to private parties, not a government agency that would determine for us which of those assessments we ought to see.

As justification for his letter, Carr asserts an FCC interest in “promot[ing] free speech and a diversity of viewpoints.” In doing so, he claims for the FCC a role wholly outside of its authority. As FIRE explained last month, the FCC’s authority is generally limited to the mechanisms of transmitting communications. Only in extremely limited circumstances does the FCC have jurisdiction over content―none of which apply online. Put simply: The FCC does not have authority whenever it decides it would like to “promote free speech” over one method of communication or another.

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Far beyond even the fear of the FCC turning into the “Federal Computer Commission,” Carr’s position is more akin to the “Free Speech Control Commission.” But putting a government thumb on the scale of speech is no way to protect the First Amendment. As Justice Elena Kagan wrote for the majority in NetChoice:

States (and their citizens) are of course right to want an expressive realm in which the public has access to a wide range of views. That is, indeed, a fundamental aim of the First Amendment. But the way the First Amendment achieves that goal is by preventing the government from “tilt[ing] public debate in a preferred direction.” . . . It is not by licensing the government to stop private actors from speaking as they wish and preferring some views over others. And that is so even when those actors possess “enviable vehicle[s]” for expression.

A final thought from Carr himself provides an apt rebuttal to his own letter:

When those with political power want to censor speech — because they disagree with the message it conveys — that is when our protections on free expression matter most.

There is only one party here with the kind of power that Carr refers to — the FCC. True concern for the First Amendment rights of Americans requires leaving subjective judgments on the credibility and publication-worthiness of speech to private parties, not a government agency that would determine for us which of those assessments we ought to see.