Brendan Carr, Trump’s ‘Free Speech’ Warrior, Wastes No Time Violating Trump’s New Free Speech Executive Order

Free Speech

from the that's-not-how-free-speech-works dept

Back in November, I explained in great detail how Trump’s new FCC chair Brendan Carr was signaling loud and clear that he intended to be Trump’s top censor. This was in contrast to both his and Trump’s declaration that Carr was some sort of “free speech warrior.” Instead, he has given every indication that he’s one of the biggest threats to free speech to work in the federal government.

So it struck me as notable that one of the very first Executive Orders Trump signed was this laughable one claiming he was “restoring freedom of speech and ending federal censorship.” As you’ll certainly recall, it has become accepted faith among the MAGA world that the Biden administration worked with private actors to create a “censorship industrial complex” to silence conservative voices online.

This was never true. As multiple studies and reports found, social media companies bent over backwards to provide more favorable rules to conservative nonsense peddlers (even as the public clamored for the platforms to take down more disinformation). And while the White House did, at times, try to persuade social media companies to improve their policies on disinformation, the companies generally ignored the White House or refused.

Indeed, even the extremely conservative Supreme Court last summer laughed off the idea that the Biden White House had coerced social media companies into any sort of censorship, with Justice Amy Coney Barrett directly noting that the content moderation actions began before any contact with the White House ever happened and didn’t appear to change in response to any White House requests. As she wrote:

We reject this overly broad assertion. As already discussed, the platforms moderated similar content long before any of the Government defendants engaged in the challenged conduct. In fact, the platforms, acting independently, had strengthened their pre-existing content moderation policies before the Government defendants got involved. For instance, Facebook announced an expansion of its COVID–19 misinformation policies in early February 2021, before White House officials began communicating with the platform. And the platforms continued to exercise their independent judgment even after communications with the defendants began. For example, on several occasions, various platforms explained that White House officials had flagged content that did not violate company policy. Moreover, the platforms did not speak only with the defendants about content moderation; they also regularly consulted with outside experts.

However, because the MAGA world will never be convinced by silly things like “facts” or “evidence” or “what the Supreme Court actually said,” Trump issued this performatively useless executive order. As it notes:

It is the policy of the United States to:       (a)  secure the right of the American people to engage in constitutionally protected speech;

     (b)  ensure that no Federal Government officer, employee, or agent engages in or facilitates any conduct that would unconstitutionally abridge the free speech of any American citizen;

     (c)  ensure that no taxpayer resources are used to engage in or facilitate any conduct that would unconstitutionally abridge the free speech of any American citizen; and

The Executive Order also calls for the Attorney General to “investigate the activities of the Federal Government over the last 4 years that are inconsistent with the purposes and policies of this order.”

Huh. Kind of odd that it only looks at the past four years and doesn’t seem to suggest the AG might want to keep paying attention to current employees, especially given the actions of one fairly senior official: FCC chair Brendan Carr.

Because almost immediately after the Executive Order went out — which, again, explicitly says that no Federal Government officer, employee or agent can engage in “any conduct that would unconstitutionally abridge the free speech of any American citizen,” Brendan Carr reopened three investigations into local TV broadcast affiliates. And the evidence strongly suggests he did so because they aired content he felt was too favorable to Kamala Harris or critical of Donald Trump.

First, some background. In the last week before the switch over, the FCC had rejected four requests to refuse to renew local broadcast affiliate licenses. Three of them were made by “the Center for American Rights,” a Trumpist non-profit. The claims were all nonsense, such as arguing that an NBC affiliate violated the Equal Time rule by having Kamala Harris on Saturday Night Live the weekend before the election.

As we explained in our post (linked above) about Carr’s desire to be a censor, Carr himself had gone on TV and argued that NBC had violated the Equal Time rule. Of course, he ignored (1) that Republicans have always hated the Equal Time rule believing it violates the First Amendment in the same way the Fairness Doctrine did, and (2) that NBC didn’t actually violate the rule, because they abided by its requirements, offering and giving Donald Trump even more useful free airtime the next day for him to run ads (as opposed to Harris who just performed in a comedy skit).

There was another complaint about CBS and 60 Minutes, which Trump has separately sued over claiming (falsely) that how CBS edited an interview with Harris somehow violated laws against “deceptive practices.” Here, the Center for American Rights demanded that the FCC force the affiliate to release a full transcript of the Harris interview or have its license pulled. In no world does the federal government (or anyone) have the right to demand an unedited transcript. Editorial discretion is protected by the First Amendment.

There was a fourth complaint to the FCC from the other side of the political spectrum, brought by the Media and Democracy Project against a Fox affiliate. There, they argued that the affiliate’s decision to air broadcasts from Fox News that were later deemed false by a court regarding the 2020 election and Dominion Voting meant that the FCC shouldn’t renew its license. There, at least, there was an actual court ruling calling out Fox News’ lies (though the case settled before it reached a final opinion). But, still, pulling a license over that would be a gross abuse of the FCC’s powers.

All four of these applications struck me as bullshit unconstitutional attempts to have the federal government punish TV stations for the content they aired, which seems to clearly violate the First Amendment. And the Biden FCC agreed. In rejecting all four applications, then-chair Jessica Rosenworcel wrote about the importance of the First Amendment and protecting free speech. It’s a strong letter, which I want to repost here in its entirety:

The First Amendment is a cornerstone of our democracy. By restricting the government from making laws that impair freedom of speech, the First Amendment preserves our right to express ourselves. The freedom of the press in this country depends on it.

Over the course of history, our government leaders have clashed with news organizations that cover their efforts. President John Adams, for instance, championed a law that made it illegal to print, utter, or publish malicious statements about the federal government. President Nixon targeted the license renewals of two television stations that were owned by the newspaper investigating his involvement in Watergate.

More recently this 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.

It may seem quaint to draw attention like this to broadcast licenses, in an era when so many of us seek out information we want, when we want it, from where we want it, on any screen handy. But these stations remain a vital source of local and national news. And there is nothing antiquated about the idea that the FCC has a duty to respect the Constitution.

Today, I have directed the FCC to take a stand on behalf of the First Amendment. We draw a bright line at a moment when clarity about government interference with the free press is needed more than ever. The action we take makes clear two things. First, the FCC should not be the President’s speech police. Second, the FCC should not be journalism’s censor-in-chief.

The agency has before it four complaints and petitions that seek to curtail freedom of the press and undermine the First Amendment. They come from all corners—right and left—but what they have in common is they ask the FCC to penalize broadcast television stations because they dislike station behavior, content, or coverage. The first asks that the FCC penalize a television station for the substance of the presidential debate on the basis that it was not a true news event. The second seeks to use the FCC to demand the release of the transcript of a news interview as a condition of continued broadcast licensing. The third asks that the FCC fine a television station regarding equal time for programming involving political candidates. The fourth seeks to have the FCC remove the license of a television station for the character shortcomings of its corporate ownership. In two Letters and two Orders, we deny all four filings.

The facts and legal circumstances in each of these cases are different. But what they share is that they seek to weaponize the licensing authority of the FCC in a way that is fundamentally at odds with the First Amendment. To do so would set a dangerous precedent. That is why we reject it here.

Again, in case you think this was biased in any direction, it clearly is not. It is biased towards protecting the First Amendment. The demands were from both sides of the political aisle and she rejected all of them.

It’s pretty obvious that this letter was also a signal to her colleague, Brendan Carr, who was about to take over her chair.

But Brendan Carr is a shameless, eager censor, so one of his very first actions was to reinstate the claims. But only the three from right wing filers. Not the one from left wing filers. He’s willing to punish the stations that were seen as unfair to Trump. But not the one that was dinged for broadcasting content that was determined by a court to be false.

In each of the three cases, the FCC, under Carr’s direction, said that Rosenworcel closed the case “prematurely.”

On January 16, 2025, the Media Bureau, under delegated authority, issued an Order in the above-captioned proceedings denying a complaint filed by the Center for American Rights. We find that the previous order was issued prematurely based on an insufficient investigatory record for the station-specific conduct at issue. We therefore conclude that this complaint requires further consideration. Thus, on our own motion and pursuant to our existing authority under Section 1.113 of the Commission’s rules, we hereby set aside the Order and reinstate the complaint.

There is unlikely to be a single person around who doesn’t see what’s going on here. Whereas Rosenworcel was willing to stand for the First Amendment and reject these blatantly political witch hunts against TV stations from both rightwing and leftwing groups, Brendan Carr is thrilled to be able to punish TV stations for appearing to be too favorable to Kamala Harris. It’s blatant political discrimination based on speech.

In other words, Carr appears to be, as an employee of the federal government, engaging in conduct “that would unconstitutionally abridge the freedom of speech” of news stations. And he’s doing so in a manner designed to create an even bigger chilling effect among news channels.

The message rings out loud and clear: if you broadcast content that is not favorable to Donald Trump, Brendan Carr may choose to use his power as FCC chair to put you through a massively unconstitutional process to punish you.

This is wholly antithetical to the First Amendment and free speech. If the Trump executive order (or the claims of Trumpworld to be “free speech supporters”) had any merit at all, we’d see Republicans calling out Brendan Carr’s extremely dangerous overreach and attacks on free speech.

But so far, there has been deafening silence from the right on Carr’s chilling actions. The hypocrisy is glaring – they claim to champion free speech while allowing blatant government overreach to punish speech critical of their side. This should be a wake-up call that their supposed principles are nothing but empty rhetoric.

Filed Under: 1st amendment, brendan carr, censorship, donald trump, executive order, fcc, free speech, jessica rosenworcel, political speech