President-elect Donald Trump’s nominee for Chairman of the Federal Communications Commission promises he will “smash the censorship cartel.” A current FCC commissioner, Brendan Carr is a seasoned policymaker and scholar of communication law. He is an unabashed promoter of the free market, promising to reduce regulation and “refill America’s spectrum pipeline” to “unleash economic prosperity.” Carr authored the FCC section of Project 2025, which encapsulates what the FCC’s policy efforts are likely to encompass in the coming years. Relevant to the First Amendment is Carr’s approach to Section 230. This is the law that grants social media companies immunity from liability for content produced by third parties, while acknowledging the companies’ right to moderate their sites. Carr believes Section 230 has been expanded and abused to censor conservative and other speech, concluding it “is hard to imagine another industry in which a greater gap exists between power and accountability.” That’s why, in his view, 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.” Specifically, Carr suggests that the “FCC can clarify that Section 230(c)(1) does not apply broadly to every decision that a platform makes. Rather its protections apply only when a platform does not remove information provided by someone else. In contrast, the FCC should clarify that the more limited Section 230(c)(2) protections apply to any covered platform’s decision to restrict access to material provided by someone else.” What this means, in effect, will be much less immunity for platforms under Section 230(c)(1), broadly interpreted by courts to apply to both distribution and takedown decisions – even though Section 230(c)(2) speaks more directly to the latter. Carr’s proposal is a direct shot at the kind of censorship decisions that have so enflamed conservative circles in recent years, and it means platforms could have substantially less legal protection in such future cases. At the same time, basic publishing and editorial functions (even a hands-off editorial approach), as well as removal of lewd or violent material would likely remain covered under this framework. (For more on the distinction between Section 230(c)(1) and Section 230(c)(2)), we recommend this Congressional Research Service report.) Carr’s writings make frequent appeals to Congress to reform and update the laws governing the internet, eager to work with Congress to harmonize his regulatory approach with the law. Given the role of courts in interpreting rules against the statutes they are based upon, it is hard, however, to predict what this new framework will look like. There’s certainly a scenario where litigation against tech platforms could snowball in a way that harms innovation, consumer experience, and the overall speech climate. Moreover, the First Amendment upholds the right of social media companies to moderate their content. Courts should not allow any rule that compromises their rights. Still, Carr’s effort to carve out more respect for speech by reinterpreting Section 230 is a lighter touch than many legislative proposals. Carr suggests placing transparency rules on big social media platforms – specifically, requiring “platforms to provide greater specificity regarding their terms of service.” We would prefer social media companies to voluntarily take up these rules. Platforms’ moderation decisions should take place in the open, providing clarity to consumers and furthering free expression and association on the handful of sites that have become the nation’s townhall. Carr also advocates for returning “to Internet users the power to control their online experiences,” perhaps through choosing “their own content filters and fact checkers, if any.” At the same time, he concedes that such policies could be seen by some as intruding “on the First Amendment rights of corporations to exclude content from their private platforms.” Carr should heed his reservation. Protect The 1st wholeheartedly supports the speech rights of private companies and opposes external impositions on this fundamental right. Regarding national security, Carr wholeheartedly supports a ban on TikTok, espousing that it provides “Beijing with an opportunity to run a foreign influence campaign by determining the news and information that the app feeds to millions of Americans.” We support the law that requires divestment by China’s ByteDance. With a sale to a U.S. owner, there would be no need for a blanket ban on TikTok that infringes on the speech and associational rights of Americans. Lastly, Carr seeks to re-emphasize the establishment of wireless connectivity for all Americans by freeing up more spectrum and streamlining the permitting process for wireless builds. According to the FCC, 24 million Americans still lack high-speed Internet as of 2024, and that’s 24 million Americans who are less able to exercise their speech rights than their fellow countrymen. Overall, Carr’s focus is to modernize the FCC and promote prosperity by turning to a “pro-growth agenda” over the heavy hand of regulatory decree. “The FCC is a New Deal-era agency,” Carr writes. “Its history of regulation tends to reflect the view that the federal government should impose heavy-handed regulation rather than relying on competition and market forces to produce optimal outcomes.” In short, Brendan Carr promises to be a bold leader at the FCC who aims to break policy logjams. Protect The 1st looks forward to evaluating his proposals when they are fleshed out in January. Earlier we compared the First Amendment records of Sen. J.D. Vance and Gov. Tim Walz, finding the two vice presidential candidates problematic with notable bright spots.
So how do the two candidates at the top of the ticket compare on defending speech? Answer: Even more problematic, but also with some bright spots. Vice President Kamala Harris As a U.S. Senator, Harris in 2017 co-sponsored an amendment with her fellow Californian and leading Democrat, the late Sen. Dianne Feinstein, that would have required federal agencies to obtain a probable cause warrant before the FISA Court could allow the government to review the contents of Americans’ emails. Protecting Americans from warrantless surveillance of their private communications concerning personal, political, and religious lives is one of the best ways to protect speech. As a senator, Harris also defended the First Amendment rights of social media platforms to moderate their content. This is not surprising given that she was from California and big tech is one of her best backers. The Washington Post reports that Karen Dunn, one of Google’s top attorneys in against the Biden administration’s antitrust case, is a top Harris advisor. This closeness suggests a danger that a Harris administration might lean heavily in support of using friendly relations with big tech as a backdoor way to censor critics and conservative speech. Consider that Harris once called for the cancellation of former President Donald Trump’s then-Twitter account, saying: “And the bottom line is that you can’t say that you have one rule for Facebook and you have a different rule for Twitter. The same rule has to apply, which is that there has to be a responsibility that is placed on these social media sites to understand their power … They are speaking to millions of people without any level of oversight or regulation. And that has to stop.” Why does it have to stop? Americans have spoken for two centuries without any level of oversight or regulation. You might find the speech of many to be vile, unhinged, hateful, or radical. But unless it calls for violence, or is obscene, it is protected by the First Amendment. When, exactly, did liberals lose their faith in the American people and replace it with a new faith in the regulation of speech? Worse, as California Attorney General, Harris got the ball rolling on trying to force nonprofits to turn over their federal IRS Form 990 Schedule B, which would have given her office the identities of donors. Under Harris’s successor, this case went to the U.S. Supreme Court. Protect The 1st was proud to submit an amicus brief, joined with amici from a coalition of groups from across the ideological spectrum. We demonstrated that the likely exposure of donors’ identities would result in various forms of “cancellation,” from firings and the destruction of businesses, to actual physical threats. A Supreme Court majority agreed with us in Americans for Prosperity Foundation v. Bonta in 2021 that the same principle that defended Alabama donors to the NAACP extends to all nonprofits. The Biden-Harris administration has also been mum on worldwide crackdowns on speech, from a Brazilian Supreme Court Justice’s cancellation of X, to hints from the French government that this U.S.-based platform might be the next target after the arrest of Telegram CEO Pavel Durov. Former President Donald Trump This is a harder one to judge. It’s long been said that Donald Trump wears better if you turn the sound off. On the plus side, President Trump took a notably strong approach in supporting surveillance reform. A victim himself of illicit surveillance justified by the FBI before the FISA Court with a doctored political dossier and a forged document, President Trump was sensitive to the First Amendment implications of an overweening surveillance state. To his credit, he nixed the reauthorization of one surveillance authority – Section 215, or the so-called “business records provision.” During the pandemic, Trump issued guidance in defense of religious liberty. He said: “Some governors have deemed liquor stores and abortion clinics essential but have left out churches and houses of worship. It’s not right. So I’m correcting this injustice and calling houses of worship essential.” He backed up his defense of religious liberty by appointing three Supreme Court Justices – Neil Gorsuch, Amy Coney Barrett, and Brett Kavanaugh – who have been strong defenders of religious liberty. But turn the sound back on and you will hear Donald Trump call the American press “the enemy of the people.” Call the media biased, corrupt, in the bag for the Democrats, whatever you like … but “enemy of the people?” Trump’s rhetoric on the media often edges toward physical hostility. As president, he mocked a CNN reporter who was hit with a rubber bullet while covering the 2020 riots in Minneapolis. “Remember that beautiful sight?” Trump asked. At a time when journalists are under threat in America and around the world, this is a decidedly un-American way to confront media bias. Donald Trump has also called for a loosening of the libel laws to allow elected officials to more easily pursue claims against journalists without having to meet the Supreme Court’s “actual malice” standard. We agree that there is room for sharpening libel law in the age of social media amplification, but allowing wealthy politicians to sue news outlets out of business would be one effective way to gut the First Amendment. So what should we conclude? Both Harris and Trump have mixed records. Both have taken bold stands for speech. Both have treated the opposition as so evil that they do not deserve legal protections. Both seem capable of surprising us, either by being more prone to censorship or to taking bold stands for free speech. Whatever your political leanings, urge your candidate and your party to lean on the side of the First Amendment. NetChoice v. Texas, FloridaWhen the U.S. Supreme Court put challenges to Florida and Texas laws regulating social media content moderation on the docket, it seemed assured that this would be one of the yeastiest cases in recent memory. The Supreme Court’s majority opinion came out Monday morning. At first glance, the yeast did not rise after all. These cases were remanded back to the appellate courts for a more thorough review.
But a closer look at the opinion shows the Court offering close guidance to the appellate court, with serious rebukes of the Texas law. Anticipation was high for a more robust decision. The Court was to resolve a split between the Fifth Circuit, which upheld the Texas law prohibiting viewpoint discrimination by large social media platforms, while the Eleventh Circuit upheld the injunction against a Florida law regulating the deplatforming of political candidates. The Court’s ruling was expected to resolve once and for all the hot-button issue of whether Facebook and other major social media platforms can depost and deplatform. Instead, the Court found fault with the scope and precision of both the Fifth and the Eleventh Circuit opinions, vacating both of them. The majority opinion, authored by Justice Elena Kagan, found that the lower courts failed to consider the extent to which their ruling would affect social media services other than Facebook’s News feed, including entirely different digital animals, such as direct messages. The Supreme Court criticized the lower courts for not asking how each permutation of social media would be impacted by the Texas and Florida laws. Overall, the Supreme Court is telling the Fifth and Eleventh to drill down and spell out a more precise doctrine that will be a durable guide for First Amendment jurisprudence in social media content moderation. But today’s opinion also contained ringing calls for stronger enforcement of First Amendment principles. The Court explicitly rebuked the Fifth Circuit for approval of the Texas law, “whose decision rested on a serious misunderstanding of the First Amendment precedent and principle.” It pointed to a precedent, Miami Herald Publishing Co. v. Tornillo, in which the Court held that a newspaper could not be forced to run a political candidate’s reply to critical coverage. The opinion is rife with verbal minefields that will likely doom the efforts of Texas and Florida to enforce their content moderation laws. For example: “But this Court has many times held, in many contexts, that it is no job for government to decide what counts as the right balance of private expression – to ‘un-bias’ what it thinks is biased, rather than to leave such judgments to speakers and their audiences.” The Court delved into the reality of content moderation, noting that the “prioritization of content” selected by algorithms from among billions of posts and videos in a customized news feed necessarily involves judgment. An approach without standards would turn any social media site into a spewing firehose of disorganized mush. The Court issued a brutal account of the Texas law, which prohibits blocking posts “based on viewpoint.” The Court wrote: “But if the Texas law is enforced, the platforms could not – as they in fact do now – disfavor posts because they:
So what appeared on the surface to be a punt is really the Court’s call for a more fleshed out doctrine that respects the rights of private entities to manage their content without government interference. For a remand, this opinion is surprisingly strong – and strong in protection of the First Amendment. Former U.S. Representatives, Bob Goodlatte (and our senior policy advisor) and Barbara Comstock, provide insight in The Hill about the latest House hearing highlighting the latest threat to journalism and why the Senate should finally pass the PRESS Act.
Dissenting Judge: “Will prevent worshipers from ever again exercising their religion” |
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