The fight to regulate online content moderation looks like it will get a friendly reception at the Federal Communications Commission in President-elect Donald Trump‘s incoming administration. However, matters could be complicated by recent court rulings on freedom of speech and the limits of the administrative agencies to crack down on social media.
Trump, who will be in office on Jan. 20, 2025, for his second, nonconsecutive White House term, will nominate FCC Commissioner Brendan Carr to lead the agency. Even before his Senate confirmation hearings, Carr has put the tech industry on notice.
In a letter last month to Google’s parent company, Alphabet, along with Microsoft, Meta, and Apple, Carr demanded details of their relationship with NewsGuard, which provides credibility ratings of news outlets and does fact-checking.
In the letter, Carr labeled a “censorship cartel” the private firm’s contracts within the online advertising industry and with browser manufacturers, in addition to social media platforms, artificial intelligence systems, and app stores. Carr wrote that he was “confident” the new administration would take action and, “Those actions can include a review of your companies’ activities as well as efforts by third-party organizations and groups that have acted to curtail those rights.”
The substance of those actions likely comes down to NewsGuard making voluntary recommendations for content moderation decisions by the platforms. However, that may run into a recent Supreme Court decision, last year’s Moody v. NetChoice ruling, in which justices upheld the First Amendment rights of companies to take down user content they find objectionable.
“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,” Ari Cohn, lead counsel for tech policy at the Foundation for Individual Rights and Expression, wrote in response to Carr’s letter.
Yet First Amendment hurdles are not the only legal troubles ahead for the FCC in pursuing content moderation regulation.
At the end of the first Trump administration, the White House asked the FCC to reconsider the interpretation of Section 230, the provision of a 1996 communications law that shields platforms from lawsuits for posts made by users. Some Republicans, angered by their belief that right-leaning content is being treated unfairly in content moderation decisions by big tech platforms, hoped the agency might use the opportunity to attack the perceived bias.
Those hopes intensified in October 2020 when then-FCC General Counsel Thomas Johnson produced a memorandum arguing that the agency had the authority to regulate content moderation. His argument was largely based on Congress placing Section 230 in Title II of the Communications Act, an area that grants the FCC broad regulatory powers. Johnson argued that court precedent was to defer to agencies’ interpretation of ambiguities in statutes, which was true at the time.
However, since the memorandum was penned, much has changed in administrative law. The high court, in late June 2024, turned that long-standing deference to agencies on its head with the ruling in Loper Bright Enterprises v. Raimondo, ending what in legal circles had long been known as “Chevron deference” for a landmark 1984 ruling that shifted responsibility for determining congressional intent from the courts to executive-branch agencies. The current court ruled that it is the judiciary, not federal agencies, that are empowered to interpret statutes.
This came after another major post-2020 development in administrative law: the Supreme Court’s revival of the so-called “major questions” doctrine two years ago in West Virginia v. EPA. In that decision, the court barred agencies from making decisions of “vast economic and political significance” without clear statutory authorization.
All of those rulings will make asserting the FCC’s authority to regulate content moderation decisions on private platforms much more difficult, if not impossible.
The president of the Phoenix Center for Advanced Legal & Economic Public Policy Studies, writing for the conservative Federalist Society, argued, “While conservatives praise these cases for curtailing the regulatory excesses of the Biden Administration, these same cases apply with equal force to any Republican administration.”
In this new legal environment, any curtailing of Section 230’s liability protections may fall exclusively to Congress to do so explicitly.
Those efforts have been unsuccessful so far. Bills have been introduced, among many other specific carveouts, to repeal Section 230, sunset the law, deny its protections if AI was being used, and others. None have been enacted, except a 2018 measure involving content related to sex trafficking.
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Last month, Carr posted on X, “The censorship cartel must be smashed into a billion pieces.”
Whether the bully pulpit of the FCC generates enough political heat to spur Congress to act remains to be seen. Whatever the agency does will find a very different legal environment than the one tech foes found in the first Trump administration.