President Trump’s Freedom of Speech Order Takes Aim at Social Media, Broadcasters
President Donald Trump’s Executive Order titled, “Restoring Freedom of Speech and Ending Federal Censorship” is the Administration’s first step to pursue the President’s content moderation goals for social media and broadcast outlets. President Trump has made clear his view that fact-checking by online platforms and broadcasters interferes with free speech. The purpose of this Executive Order is set forth in Section 1:
Over the last 4 years, the previous administration trampled free speech rights by censoring Americans’ speech on online platforms, often by exerting substantial coercive pressure on third parties, such as social media companies, to moderate, deplatform, or otherwise suppress speech that the Federal Government did not approve. Under the guise of combatting “misinformation,” “disinformation,” and “malinformation,” the Federal Government infringed on the constitutionally protected speech rights of American citizens across the United States in a manner that advanced the Government’s preferred narrative about significant matters of public debate. Government censorship of speech is intolerable in a free society.
Echoing President Trump, when Mark Zuckerberg announced that Meta would no longer fact-check content on its platform, Zuckerberg said this action would “dramatically reduce the amount of censorship on our platforms.”
The principal action item in this Executive Order is for the Attorney General, working with the heads of executive departments and agencies such as the Federal Communications Commission (FCC), to “investigate the activities of the Federal Government over the last 4 years that are inconsistent with the purposes and policies of this order [to restore free speech and end federal censorship], and prepare a report to be submitted to the President . . . with recommendations for appropriate remedial actions to be taken based on the findings of the report.”
President Trump and Chairman Brendan Carr both have expressed support for the FCC taking action to limit the scope of Section 230, the Communications Decency Act, and the liability protections enjoyed by online platforms and website operators. Chairman Carr favors Section 230 reforms that track the positions outlined in a July 2020 Petition for Rulemaking filed at the FCC by the National Telecommunications and Information Administration (NTIA) near the end of the first Trump Administration.
That 2020 NTIA Petition proposed extensive limitations on the liability protections for online platforms under Section 230. For example, the Petition asserts that Section 230 immunity should only apply to internet platforms that act as strict conduits of third-party information. If a platform needs to remove content, it can only enjoy Section 230 immunity if it removes content by following a highly rigorous, newly defined good faith standard, and only if it reasonably believes that content is “obscene, lewd, lascivious, filthy, excessively violent, harassing” or “similar in type.” Internet platforms would not be eligible for Section 230 immunity, if the platform is “substantively contributing to, modifying, altering, presenting or prioritizing with a reasonably discernible viewpoint, commenting upon, or editorializing about” third-party content. An Internet platform also would not enjoy immunity, and would therefore be civilly liable, if it “reviews third party content already displayed on the internet and affirmatively vouches for it, editorializes, recommends, or promotes such content on the basis of the content’s substance or message.”
In 2022, Trump released a campaign video suggesting, among other things, that companies should only qualify for Section 230 liability protections if they satisfy “high standards of neutrality, transparency, fairness, and non-discrimination,” and that users over 18 should be permitted to opt out of all content moderation on digital platforms. Chairman Carr also proposed, in the past, that the FCC impose transparency rules for online platforms similar to those applicable to broadband providers including, for example, required disclosures about practices that would shape Internet traffic, such as blocking, prioritizing or discriminating against content.
Concerned about online censorship, Chairman Carr (when he was a Commissioner) sent a letter in November 2024 to certain “Big Tech” CEOs (Alphabet, Meta and Apple) seeking information about their companies’ use of NewsGuard, a third-party fact-checking organization. In the letter, Carr expresses concern that these Big Tech companies are using the NewsGuard service in a manner that violates Section 230’s “good faith” requirement. Carr wrote:
For now, I am writing to obtain information from you that can inform the FCC’s work to promote free speech and a diversity of viewpoints. As you know, Big Tech’s prized liability shield, Section 230, is codified in the Communications Act, which the FCC administers. As relevant here, Section 230 only confers benefits on Big Tech companies when they operate, in the words of the statute, ‘in good faith.’ It is in this context that I am writing to obtain information about your work with one specific organization—the Orwellian named NewsGuard. As exposed by the Twitter Files, NewsGuard is a for-profit company that operates as part of the broader censorship cartel. Indeed, NewsGuard bills itself as the Internet’s arbiter of truth or, as its co-founder put it, a ‘Vaccine Against Misinformation.’ NewsGuard purports to rate the credibility of news and information outlets and tells readers and advertisers which outlets they can trust.
The CEOs were asked to respond to then-Commissioner Carr’s letter in December of 2024. According to Stephen Brill, Co-CEO of NewsGuard, it has become the target of the Trump Administration and “far-right” Republicans in Congress: “They are accusing me and my NewsGuard colleagues of being part of some left-wing conspiracy — or “cartel” in the words of the incoming chairs of both the FCC and the FTC. Our cartel is supposedly aimed at censoring conservative websites and their associated social media and video platforms. What we actually do is provide consumers and businesses with our journalists’ assessments of the professional standards of thousands of news websites, assigning them reliability scores based on apolitical, journalistic factors — like accuracy, transparent correction policies and honest headlines.”
Social media platforms are not, however, the sole focus of the President’s and the FCC’s content moderation concerns. In 2024, President-elect Trump and then-Commissioner Carr suggested that the FCC might investigate and take action against broadcasters—potentially up to and including license revocation—who, in the Administration’s view, do not live up to their public interest obligations. For example, President Trump has previously suggested that certain broadcast networks should be punished, such as by revocation of FCC licenses for their owned-and-operated broadcast stations, for actions described below. Then-Commissioner Carr voiced support for President Trump’s call to strip licenses from major broadcast network-owned stations and said that all remedies need to remain on the table—“one of the remedies the FCC has, ultimately, would be license revocation, if we find that it’s egregious.”
Keeping with that theme, in his first few days as Chair of the FCC, Chairman Carr reinstated three complaints against broadcast stations accused of bias against President Trump during the last election. The complaints against CBS, ABC and NBC had been dismissed by Former FCC Chair Jessica Rosenworcel before she left office. Rosenworcel said the "threat to the First Amendment has taken on new forms, as the incoming President has called on the Federal Communications Commission to revoke licenses for broadcast television stations because he disagrees with their content and coverage." Each order reinstating the complaints said the orders were prematurely dismissed based on “an insufficient investigatory record for the station-specific conduct at issue." The complaints were filed by the Center for American Rights and claim bias against President Trump, news distortion and violation of the equal time rule. The complaints relate to ABC fact-checking during a presidential debate, CBS editing a 60 Minutes interview with Vice President Kamala Harris, and NBC including Harris on Saturday Night Live. Chairman Carr indicates that the complaint against CBS may become an issue when the FCC considers whether or not to grant consent for a transaction involving Skydance and Paramount, which owns 28 local CBS TV stations. Carr did not reinstate a fourth petition against a Fox-owned station that argued that the network’s coverage of the 2020 election and false claims relating to voting machines should prevent the renewal of the station license.
As noted above, the next step is for the Attorney General, working with other agencies and Departments, such as the FCC, to prepare a report about whether the Federal Government has been engaged, over the past four years, in government censorship or infringing upon free speech rights. We expect this will be followed by, among other things, a rulemaking at the FCC and proposed legislation on the Hill. Please contact us if you would like to further discuss these issues.
