Trump's Pick To Run the FCC Wants To Restrict the Editorial Discretion of Social Media Platforms

Announcing his choice of Brendan Carr as chairman of the Federal Communications Commission (FCC) on Sunday, President-elect Donald Trump described him as “a warrior for Free Speech,” which sounds good until you ask what Trump means by that. Carr, who has served as a Republican FCC commissioner since Trump appointed him during his first term in August 2017, believes that promoting freedom of speech requires curtailing liability protections for social media platforms and restricting their editorial discretion.

Carr’s agenda for “reining in Big Tech,” as described in the chapter that he contributed to the Heritage Foundation’s 2025 Mandate for Leadership, includes new FCC rules aimed at restricting the liability protection offered by Section 230 of the Communications Decency Act. Carr also supports regulations that would “impose transparency rules on Big Tech” and legislation that “scraps Section 230′s current approach.” He favors “reforms that prohibit discrimination against core political viewpoints,” which he says “would track the approach taken in a social media law passed in Texas.”

That law, which says social media platforms may not “censor” content based on “viewpoint,” was the focus of NetChoice v. Paxton, a case that the U.S. Supreme Court decided in February along with Moody v. NetChoice, which involved a similar Florida law. In both cases, the Court unanimously vacated appeals court decisions (upholding the Texas law and blocking provisions of Florida’s law, respectively), saying they did not properly apply the First Amendment. But as Reason‘s Elizabeth Nolan Brown noted, the opinion by Justice Elena Kagan, which was joined in full by four of her colleagues, supported the argument that moderation decisions are a form of constitutionally protected editorial discretion.

“While much about social media is new, the essence of that project is something this Court has seen before,” Kagan wrote. “Traditional publishers and editors also select and shape other parties’ expression into their own curated speech products. And we have repeatedly held that laws curtailing their editorial choices must meet the First Amendment’s requirements. The principle does not change because the curated compilation has gone from the physical to the virtual world. In the latter, as in the former, government efforts to alter an edited compilation of third-party expression are subject to judicial review for compliance with the First Amendment.”

Carr takes a different view. “The FCC has an important role to play in addressing the threats to individual liberty posed by corporations that are abusing dominant positions in the market,” he writes. “Nowhere is that clearer than when it comes to Big Tech and its attempts to drive diverse political viewpoints from the digital town square.”

Carr re-upped that complaint in an X post on Friday. “Facebook, Google, Apple, Microsoft & others have played central roles in the censorship cartel,” he wrote. “The Orwellian named NewsGuard along with ‘fact checking’ groups & ad agencies helped enforce one-sided narratives. The censorship cartel must be dismantled.”

As Carr sees it, the threat to freedom of expression comes from Big Tech, not from laws and regulations that aim to limit its discretion in deciding which “curated speech products” to offer. “Today, a handful of corporations can shape everything from the information we consume to the places we shop,” he says. “These corporate behemoths are not merely exercising market power; they are abusing dominant positions. They are not simply prevailing in the free market; they are taking advantage of a landscape that has been skewed—in many cases by the government—to favor their business models over those of their competitors. It is hard to imagine another industry in which a greater gap exists between power and accountability.”

Section 230, Carr argues, is one way that landscape has been skewed. That law, which supporters describe as “the internet’s First Amendment,” includes two provisions addressing the civil liability of “interactive computer services,” defined broadly to include “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server.”

Section 230(c)(1) says “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Section 230(c)(2) says “no provider or user of an interactive computer service shall be held liable on account of…any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” The latter provision also precludes liability for “any action taken to enable or make available to information content providers or others the technical means to restrict access” to user-posted material.

There are several exceptions to Section 230′s liability protection, including material that violates federal criminal laws, impinges on intellectual property, or facilitates sex trafficking. But the general idea is to avoid potentially crippling civil liability for services that feature user-posted content while leaving space for content moderation. Without those protections, platforms might feel financially constrained either to refrain from any attempt at moderation or to engage in proactive, heavy-handed moderation aimed at avoiding lawsuits.

Carr is not a fan of Section 230. He joins Justice Clarence Thomas in arguing that federal courts have interpreted the law’s protections too broadly. He says “the FCC should issue an order that interprets Section 230 in a way that eliminates the expansive, non-textual immunities that courts have read into the statute.” More fundamentally, Carr objects to Section 230 itself. He favors Texas-style legislation “ensuring that Internet companies no longer have carte blanche to censor protected speech while maintaining their Section 230 protections.”

As Carr concedes, his view of the government’s role in promoting “a diversity of viewpoints” on social media is “not shared uniformly by all conservatives,” some of whom “do not think that the FCC or Congress should act in a way that regulates the content-moderation decisions of private platforms.” Those conservatives, he notes, argue that “doing so would intrude—unlawfully in their view—on the First Amendment rights of corporations to exclude content from their private platforms.”

A Republican-controlled Congress that shares Carr’s view of Big Tech might be inclined to approve the sort of legislation he favors, which comports with Trump’s own resentment of moderation decisions he views as politically biased. (By contrast, Carr’s support for the federal TikTok ban is consistent with Trump’s position during his first term but contradicts his recent reconsideration of that policy.) Given what the Supreme Court has said about constitutional limits on interference with moderation decisions, however, a Texas-style federal law probably would not survive judicial review.

Carr also suggests less ambitious measures to curtail Big Tech’s power. “The FCC and Congress should work together to formulate rules that empower consumers,” he says. “One idea is to empower consumers to choose their own content filters and fact checkers, if any. The FCC should also work with Congress to ensure stronger protections against young children accessing social media sites despite age restrictions that generally prohibit their use of these sites.”

Even without new legislation, Carr thinks the FCC can and should limit Section 230′s protections by narrowly construing them. Trump attempted something similar with an executive order he issued during his first term. Among other things, it instructed the FCC to clarify the law’s scope by elucidating “good faith” moderation.

Trump “has [a] right to seek review of [the] statute’s application,” Republican FCC Commissioner Mike O’Rielly said in response to news of the order. “As a conservative, I’m troubled voices are stifled by liberal tech leaders. At same time, I’m extremely dedicated to First Amendment which governs much here.” FCC Chairman Ajit Pai, who had earlier resisted Trump’s suggestion that broadcast licenses should be contingent on whether news coverage makes him look bad, said only that the commission “will carefully review any petition for rulemaking.” Carr was more enthusiastic, saying the federal government had “provided virtually no guidance on the ‘good faith’ limitation Congress included in Section 230.” While some Republicans welcomed the order, several conservatives panned it as extralegal and unconstitutional.

In his Mandate for Leadership chapter, Carr also suggests “the FCC could require these platforms to provide greater specificity regarding their terms of service, and it could hold them accountable by prohibiting actions that are inconsistent with those plain and particular terms.” He says “Big Tech should be required to offer a transparent appeals process that allows for the challenging of pretextual takedowns or other actions that violate clear rules of the road.”

Carr cites Section 230 and the Consolidated Reporting Act as “potential sources of authority” for imposing such requirements. But while Section 230 mentions the value of “user control” and “a true diversity of political discourse,” it does not include any specific FCC authority regarding either. The Consolidated Reporting Act, which requires the FCC to publish information on “the state of the communications marketplace,” likewise does not say anything about mandates on social media platforms.

Carr has “proposed to do a lot of things he has no jurisdiction to do,” Jessica Gonzalez, co-CEO of the advocacy group Free Press, told The New York Times. “In other cases, he’s blatantly misreading the rules.” Carr’s regulatory agenda is apt to run into legal trouble, especially given the recent Supreme Court decision that curtailed the ability of executive agencies to invent their own authority.

Carr’s Mandate for Leadership essay does not say much about broadcast licenses, which Trump has repeatedly said should be revoked when news organizations offend him. But after Trump’s election victory, Carr said the FCC “will have an important role to play” in “ensuring that broadcasters operate in the public interest.” And Carr has previously expressed some sympathy for Trump’s argument that broadcast outlets subvert “the public interest” when they cover the news in ways he does not like.

When Trump complained that CBS had edited a 60 Minutes interview with Vice President Kamala Harris to make her seem more cogent than she actually was, for example, Carr entertained the possibility that CBS might have engaged in “broadcast news distortion.” At the same time, Carr implicitly acknowledged that such a claim, which would require proving that CBS “deliberately distorted a factual news report,” was a stretch. “In my view,” he told Glenn Beck, “the best way forward” would be to “release the transcript,” which would mean “there’s no reason to have this before the FCC.”

After Trump’s ABC debate with Harris, he argued that the FCC “ought to take away their license” because the moderators fact-checked him but not her. When Carr was asked about Trump’s threat during a House hearing in September, he repeatedly declined to say whether such a punishment would be justified, although he did say that his record at the FCC reflected “a consistent pattern” of taking positions “based on the law, the facts, and the First Amendment.”

By contrast, Carr publicly addressed Trump’s complaint about Harris’ appearance on Saturday Night Live shortly before the election. “This is a clear and blatant effort to evade the FCC’s Equal Time rule,” Carr wrote on X. ”The purpose of the rule is to avoid exactly this type of biased and partisan conduct—a licensed broadcaster using the public airwaves to exert its influence for one candidate on the eve of an election.”

Although it is not clear how open Carr will be to Trump’s complaints about unfair news coverage, it does seem clear that he has no qualms about the weird status of broadcasters under current law. Unlike other news sources, broadcasters are subject to FCC content regulation, including the prohibition of “broadcast news distortion,” the “equal time” rule, and the ban on broadcast indecency.

“The law in this area is, regrettably, complicated,” notes UCLA First Amendment specialist Eugene Volokh. “The Supreme Court has broadly protected the right of newspapers, magazines, book authors, filmmakers, cable companies, Internet companies, and others to speak, without the fear that a government agency will strip them of the right to speak based on the content of their speech. But the rule for broadcast television and radio has been different.”

Volokh notes that both Thomas and the late Justice Ruth Bader Ginsburg, ordinarily seen as representing opposite poles on the Supreme Court, have “suggested that it was unsound to offer lesser First Amendment protection to broadcasting.” That concern is well founded, Volokh suggests, because “the FCC can’t be trusted to police supposed ‘misinformation’ on radio and television any more than some Federal Newspaper Commission could be trusted to police supposed misinformation in newspapers.”

The main historical rationale for treating broadcasters differently—that the “scarcity” of “the public airwaves” required government control—never made much sense. It makes even less sense in the current media environment, where the exact route that information travels on its way to listeners and viewers has no obvious constitutional significance. But because of the increasingly puzzling legal distinction between broadcasting and other modes of communication, an FCC chairman’s understanding of “the public interest” remains a potential threat to freedom of the press.

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Source: https://reason.com/2024/11/18/trumps-pick-to-run-the-fcc-wants-to-restrict-the-editorial-discretion-of-social-media-platforms/