Pod Insights Decoder The FCC is a now a weapon in Trump’s war on free speech About this episode The First Amendment, protecting free speech and free media, is a pillar of US law. It is, famously, the first one. We don’t usually tolerate government interference with speech.
So it’s been disconcerting these first few weeks of the second Trump administration to realize suddenly, there’s a nonzero chance the government will punish our work. FCC Chairman Brendan Carr is absolutely determined to turn all that talk about the media being the enemy of the people into concrete legal action — incredibly serious, unprecedented attacks on free speech.
Links:
Carr’s emerging agenda and its dangerous effects | Tech Policy Press
Trump’s MAGA enforcer is having ‘the time of his life’ | The Daily Beast
FCC to investigate Comcast for having DEI programs | The Verge
Trump amends CBS ’60 Minutes’ lawsuit & demands $20 billion | LA Times
No Apology Over Trump Lawsuit, ‘60 Minutes’ Top Producer Says | New York Times
The FCC is investigating NPR and PBS | The Verge
ABC News to pay $15 million to settle Trump defamation suit | Wall Street Journal
Top Trump donor wants SCOTUS to reverse press protection | The New Republic
Credits:
Decoder is a production of The Verge and part of the Vox Media Podcast Network.
Our producers are Kate Cox and Nick Statt. Our editor is Ursa Wright.
The Decoder music is by Breakmaster Cylinder.
Learn more about your ad choices. Visit podcastchoices.com/adchoices
Transcript 9,807 words · 10 speakers
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1:36 Speaker 04 Hello and welcome to Decoder. I'm Neelai Patel, editor in chief of The Verge, and Decoder is my show about big ideas and other problems. You know, it occurred to me the other day that I've been the editor in chief of The Verge for over 10 years now, and a tech journalist for about 15. And until just recently, it felt pretty safe to assume that there was a 0% chance the United States government would punish me for doing my job. There's a whole First Amendment, after all. We don't usually tolerate government interference with speech, and we have a high bar for how public figures like politicians and celebrities can use defamation law to shut down reporting that they don't like. So it's been fairly disconcerting in these first few weeks of the second Trump administration to realize that there's suddenly a non-zero chance the government will punish our work.
2:18 Speaker 04 That all that talk about the media being the enemy of the people is turning into concrete legal action against publishers, broadcasters, and platforms that don't do what the Trump White House wants. There are new examples, big and small, popping up basically every day. Just this week, the Associated Press was barred from a White House event because the AP Style Guide says reporters should still call it "the Gulf of Mexico" and not "the Gulf of America," like Trump wants. It sounds silly, but as AP Executive Editor Julie Pace says, "it plainly violates the First Amendment." It's a clear example of the government punishing a company for speech it doesn't like. And there are bigger, deeper attacks on free speech coming from Brendan Carr, the new Trump-appointed chair of the Federal Communications Commission.
3:00 Speaker 04 The FCC is pretty much the only government agency with some authority to directly regulate speech in America because it controls the spectrum that's used to broadcast radio and television. And Carr has started to use that authority to punish broadcasters for speech Trump doesn't like and even internal business practices that don't align with the administration. He's opened investigations into ABC, CBS, and NBC in a way that no previous FCC would have ever done, and he's even launched an investigation into NBC's parent company Comcast over DEI policies. By the way, this is where I should mention our standard disclosure that Comcast and NBC Universal are investors in our parent company Vox Media, but it doesn't really matter in this context since Carr is hell-bent on punishing every media company unless they fall in line.
3:42 Speaker 04 I've talked to virtually everyone who's been FCC chair, going back to the Bush administration, and Carr's interpretation of what the FCC is for and what authority it has over speech is about as autocratic as it gets. Brendan Carr wants to be America's chief censor, and so far, he is getting his way. This is really serious stuff, and it could have far-reaching consequences for how journalists try to report on the Trump administration, primarily by creating a real and sustained culture of fear, one that's already ripping through the corporate parent companies of major news organizations. They've begun rolling over and settling various lawsuits instead of fighting for our First Amendment rights. It's dire out there, but to understand how to solve the problem, we first have to see its scope. So I asked Matt Wood, the VP
4:25 Speaker 04 and General Counsel of Free Press, to join the show. That's Free Press, the 20-something-year-old First Amendment advocacy group, not Free Press, the Barry Weiss publication. It's confusing a lot of people, including, apparently, some members of Congress. Anyhow, Matt has been a fixture of the open internet and press freedom movements for decades now, and his expert understanding of the history of speech regulation in America can help us see the context of what's happening today and why Trump and Brendan Carr's unprecedented attack on free speech is such a big deal. Okay, the FCC, Brendan Carr, and the very concept of free speech in America. Here we go.
5:13 Speaker 04 Matt Wood, you are the VP of Policy and General Counsel at Free Press. Welcome to Decoder.
5:18 Speaker 05 It's great to be here with you during this important time.
5:21 Speaker 04 Quickly explain to people what Free Press is.
5:23 Speaker 05 So Free Press is about 20-plus years old now, a little bit more than that, and we have always been involved in what used to be called media reform. Nowadays, I'd probably say we do a suite of media, tech, and telecom law, but from a civil rights perspective and a consumer rights perspective, and we try to bring real people's voices into these debates in DC, where these issues are often decided outside of public view, or at least without enough public input.
5:45 Speaker 04 There's a lot of pressure on that from a lot of different directions right now, but the thing that is most striking to me is that after many years of bipartisan, universal consensus that the First Amendment is pretty sacrosanct and should be expanded, the Trump administration in particular is putting an enormous amount of pressure on speech. They're doing it while saying they are supporting free speech, but if you look at their moves, there's actually a lot of pressure on who gets to say what and when. And it seems like... That is under remarked upon in this whole blitz of Trump executive orders,
6:28 Speaker 04 but it's very real. Can you just describe the shape of the pressure on the First Amendment right now?
6:32 Speaker 05 It's remarkable how quickly things change, right? I don't even know where to start sometimes. Things like 1984 get overused perhaps as a touchstone, but that's really where we live now, right? They say one thing and they mean exactly the opposite. So when Donald Trump appoints Brendan Carr to be Chair of the FCC, he calls him a warrior for free speech, I believe. And we see lots of this cult around Elon Musk as well, right? Free speech, free speech. What they've done is they've basically completely subverted it and reversed it. And they say, okay, here's what free speech means to us. It means not just any private individual or private company can say literally anything they want, no matter how hateful and no matter how harmful. And we, other private citizens, companies, we have to not only listen to that, but amplify it, right? It's this notion that if I get kicked off of social media, that's my free speech being
7:17 Speaker 05 violated, even for public figures.
7:20 Speaker 04 That idea of amplification is a big one. Private individuals and private companies are supposed to be able to say whatever they want in America without government interference. And part of that is also the freedom to not say what they don't want to. The government can't compel someone into speech they don't agree with. And for the same reasons, the government can't force a private entity, like a social media platform, to host lies or speech the platform thinks is offensive. But the Trump administration isn't happy unless you're not only permitting, but also amplifying their messages.
7:50 Speaker 05 Twitter is not what it once was, as we all know. But I used to have to say when Trump was doing this in this first administration, the First Amendment exists to protect Twitter from Trump, not to protect Trump from Twitter, right? So the First Amendment and free speech should mean, and does mean, if we're in any kind of reality, that the government can't interfere with speech. And yet, that's what these people are doing right now, is in the name of free speech, because what they're really trying to do is amplify their own voices and viewpoints. They're doing stuff that would have been unimaginable just a few short years ago, threatening reporters with jail time, threatening CEOs with jail time, threatening to pull broadcast licenses when they don't like how coverage goes. Brendan Carr himself, a short three years ago, was saying things like newsroom decisions should be beyond the purview of any kind of government investigation or interference.
8:35 Speaker 05 And now, what do you know? Now that his president has power again, he's doing exactly the opposite and threatening everybody he can find on all sorts of fronts and basically threatening them for the viewpoints and the content that they've included in their broadcasts.
8:49 Speaker 04 So let's talk about Brendan Carr, who in many ways is the face of this administration's campaign against the First Amendment. Being the chairman of the FCC gives Carr power over speech, although not nearly as much as he wants. He's posted on X that he's having enormous fun, threatening media companies over their speech, which is really not something you want unelected government bureaucrats doing in a functional democracy. Since last year, Carr has put targets on ABC, CBS, and NBC over election-related coverage that Trump didn't like. And the letters he sent those broadcasters are basically extortionate, saying that these companies could lose broadcast licenses for their network affiliates if they don't fall in line. He also sent threatening letters to social media platforms last year about their fact-checking programs, even though the FCC doesn't have any power to
9:32 Speaker 04 regulate speech on the internet. This is a straightforward power grab, and a big one. Brendan Carr wants to be the government's speech police, and right now, it feels like a lot of big companies are going to let him. So let's talk about Brendan and how he turned into such a free speech nightmare.
9:47 Speaker 05 Yeah, I mean, I've known him for a long time, and he used to be what I would call a garden-variety Republican communications lawyer. He worked at a firm called Wiley Rhine, where they were defending broadcasters and cable companies and all the same sorts of people that I used to represent when I was in the law firms and before I switched sides to the nonprofits. He's kind of gleefully taken on this political mantle, really ever since the first Trump administration, but especially these last couple of years, he's been auditioning for this job. And he saw that the pathway to doing that was to ditch his previous peons to free speech, where he said that newsrooms should never be interfered with. Back in 2021, Anna Eshoo and Jerry McNerney, two Democrats in Congress who've since retired from California, sent a letter after January 6th and said to a bunch of cable systems,
10:31 Speaker 05 "Why are you carrying Fox News when they're spreading these lies that led to the January 6th insurrection?" Brendan Carr piped up and said, "This is terrible. This is an affront to the First Amendment. Even asking these questions is a problem." Now, I don't know what to make of that. I mean, we thought that those were fair questions, but that was members of government saying to private actors, "What are your decisions here? Why are you carrying this?" And Brendan Carr said, "No, no, members of Congress can't say that." Now he's cut out the middleman, right? Basically, his position now is, "We, the government, are going to question those kinds of decisions. If you distort the news in our view here at the FCC, we're going to come after you." In previous years, previous rounds, Republicans really never met a media merger they didn't like, and now broadcast deals that have been on the table for a while.
11:17 Speaker 05 He's threatening that those won't go through because he wants to basically hold some kind of sword and Danocles over people's heads for expressing viewpoints that Trump didn't like. And so, yeah, we've called him the censorship czar.
11:29 Speaker 04 The censorship czar is not really the sort of thing we're supposed to have here in the United States. There have been times in our history when the government got overzealous about speech, and we tend to look back on those moments as being mistakes. Hollywood blacklist during the McCarthy era, for example, the weird fight over rap lyrics that led to those useless parental advisory labels on CDs. It's a long list of bad ideas, and it's usually pretty clear when the government steps over the line. But there's another part of this that's much fuzzier, and it's when the government merely threatens consequences for speech, even if it doesn't pass formal speech regulations. See, the government doesn't have to make rules that would trigger obvious First Amendment lawsuits. It can just threaten those rules, or file frivolous lawsuits, or hold up regulatory approvals unless news
12:11 Speaker 04 coverage gets more favorable. That's what Trump and his administration are doing to CBS right now. Trump sued CBS's parent company Paramount for $10 billion in a defamation lawsuit, and now Paramount is considering settling that lawsuit instead of fighting it in order to sell itself to a company called Skydance. And Brendan Carr has opened a, quote, "news distortion investigation" into CBS over an interview with Kamala Harris, in which one part of an answer was aired during one news program, and another part of the same answer was aired on another. Here in the United States, we usually take for granted that the First Amendment protects private actors against that kind of government pressure, too. An outrage about it is usually bipartisan. Republicans raised hell about every attempt from the Biden administration to push social media platforms into being more careful about
12:56 Speaker 04 spreading lies about election integrity or the pandemic. Hell that resulted in some lawsuits going all the way to the Supreme Court. And yet, here we are in 2025, with Brendan Carr openly trying to chill speech in a way that seems flagrantly corrupt.
13:09 Speaker 05 It's hard to know where the official stuff ends and where the political chilling begins, but I almost don't care. You know, the point is to chill people. And so, the fact that he's doing a lot of this work, literally in Fox News and Fox Business interviews, where he just throws out these threats to broadcasters or to other media entities as well. If they never follow up on it at the FCC, it's still dangerous, but they are indeed following up. And I think that's what people can't underestimate. They want to do these things that they're promising to do. That's something that journalists do, right? As you edit, you curate, you decide how to present something. Previously, that would have been sacrosanct, and Republicans would have been howling, and I think still would be howling, where the shoe on the other foot, and saying, you can't question that kind of decision. But now we have somebody like Brendan Carr saying, well, you guys have a merger in front
13:54 Speaker 05 of us. And, you know, it's almost like a protection scheme, or an extortion scheme. Like, it'd be a shame if we blocked your merger over our dislike for the way you edited that interview. It's about that bad. And that's really what they're doing now. And like, so much of the corruption we're seeing in this new administration, in plain sight. They're not even trying to hide it. And they're going after everybody they can. The point is to take out any kind of power that might oppose them, and that includes a free press.
14:19 Speaker 04 This kind of MAGA thought enforcement is the exact opposite of what mainstream Republicans, or Democrats, or libertarians would have said for the past 40 years. They would have all agreed that government speech regulations are wholly inappropriate, and the FCC should not have the authority to say to a news station, we're going to take your license away because the president didn't like your coverage. Is it just Trump that's changed? Or is it something more than that?
14:42 Speaker 05 That's a great question. If I knew the precise answer, or at least the comprehensive answer to that, I'd probably know a lot more about our current electorate. But, you know, I mean, I think Trump is obviously a catalyst for it, whether that's the only reason. He spent a lot of time not only attacking his critics and coverage he doesn't like, but saying that all press is the, what, the enemy of the people. Talk about just basically tearing up the First Amendment to the Constitution, but they've invested a lot of time and energy into this narrative that media is lying to you, and it's sort of an us versus them, all part of their culture wars kind of narrative. I think Trump is what's given a lot of people a lot of permission to do things in ways that would have been unimaginable before. And as I said before, I don't so much care whether or not Brendan Carr means to make
15:25 Speaker 05 good on his threats. The fact that he's making them is remarkable, and when he tries to follow through on them, that's remarkable, too.
15:30 Speaker 04 There's a long history of the FCC putting requirements around broadcast speech. One of the most famous rules, which is now gone, was the fairness doctrine, which basically had two parts. It said that TV and radio broadcasters had to air issues of public importance, and those broadcasters had to fairly let multiple viewpoints on an issue have their say. The process was complicated, but the Reagan administration killed off the fairness doctrine in the late 80s. We've talked about this at length before on Decoder. We'll link to that episode in the show notes. But that's the closest thing we've had, the sort of direct speech regulation that we're seeing out of the Trump administration now. The thing is that the legal justification for things like the fairness doctrine and the famous prohibitions against obscenity on the airwaves came from the technology itself.
16:11 Speaker 04 Broadcast licenses are inherently limited by the laws of physics. There are only so many stations you can fit into the usable part of the radio spectrum. And so the FCC was given the ability to tell broadcasters that they had to use a scarce public resource, the airwaves, in the public interest. But there were no similar physical limitations on cable TV, for example. So when cable became dominant, cable networks like HBO and Fox News were vastly more free to show whatever they wanted. And of course, now, there's an infinite amount of content distributed over the internet. There's no limitations at all. And so the government basically has nothing to say about what internet companies can distribute or not.
16:48 Speaker 05 I wouldn't say the fairness doctrine was always a bad idea. I think it was important. And there's actually a Supreme Court precedent from more than 50 years ago now saying, yeah, broadcasting is different. When it was really more or less the only mass electronic media game in town, there was this notion that, okay, the ability to speak to the public through these channels is scarce. And that's why we have to ensure that it's done fairly and that all sides have the ability to reach people. You can say what you want about what validity there is in that kind of thinking today.
17:17 Speaker 04 That pretty much answers to a Supreme Court case called Red Lion, which I love talking about. It's a case from the 60s where the court unanimously ruled that the fairness doctrine and the First Amendment were not in conflict because the public interest in airwave scarcity justified the government's interest in making sure different viewpoints got aired. But like I said, we're not really dealing with scarcity anymore.
17:37 Speaker 05 You know, there's a lot more electronic media these days, to put it mildly. And yet, even if you want to say the fairness doctrine no longer should exist today, or never should have been, like the Republican position for decades upon decades, as we're talking Reagan administration and on through, was we should get rid of the fairness doctrine. There might have been some results oriented thinking there too, right? Like, they might have thought, hey, broadcasters tend to be more conservative, and so we want to take any restrictions off of them. Whereas before this Trump election, you know, Silicon Valley was thought to be more left-leaning and more liberal. Have to really question that at this point, as you see how all these billionaires have lined up behind Trump now, quite literally. But in any case, like, that was the Republican position for decade after decade. It was dogma that we should get rid of the fairness doctrine, we shouldn't be putting
18:20 Speaker 05 any kind of restrictions on broadcasters' use of the airwaves. And now, low and behold, once Donald Trump has power again and Brendan Carr becomes an instrument of his, you see Brendan Carr not only saying, "Tell me what to do, President Trump," in ways that violate the independent agency mandate that he has to not be taking directives from the president, you see him gleefully going after the press in ways that I think would have shocked anybody who knew him or knew his positions, or the kind of clients he represented, you know, a little more than a decade ago.
18:51 Speaker 04 Prior to Trump, the most recent example we have of the FCC going after a broadcaster is from about 20 years ago. It's the 2004 Super Bowl halftime show. That's the one where Justin Timberlake pulled down Janet Jackson's top, breasts got exposed on TV, and the FCC went nuts. The case stretched on for years, CBS fought it, and eventually it came to nothing. But ever since then, both Republican and Democratic FCC chairs have basically said that the agency has got to get out of the business of regulating TV content, and instead spend its time on internet access, connectivity, and spectrum licenses, basically making sure that everyone in America is connected to the internet. And part of that, of course, was the big fight over net neutrality, where Carr and his fellow Republican commissioners said the FCC shouldn't have any authority over internet service providers at all.
19:35 Speaker 05 He's given up his jurisdiction over broadband providers, but now he wants to be the content police on broadcasts. And he wants to bring in websites and platforms too, and remove Section 230, or at least weaken it. So whether it's the end of things to do, or just a remarkable pivot for people who've gotten away with it. For years and years, Republicans also said, not only get rid of the Fairness Act, but they said, we shouldn't regulate the internet. And, you know, starting about five or maybe 10 years ago, it started to shift in, at first gradual, but I think seismic ways. It's like, we shouldn't regulate the internet, except for those darn websites. They're dangerous, right? So if you have these guys really talking out of both sides of their mouth, and I don't know what to attribute it to. I mean, you brought up Janet Jackson, and that's without defending either the moral rectitude
20:17 Speaker 05 or the First Amendment principles of indecency regulation, right? Because that's what it's about. It's about anything that might have to do with bodies or sexuality. That's always been separate. And so, yes, we had more of that in the past. We have George Carlin and the seven words you can't say on radio, going back to the 70s. That's a strain of this, for sure. But getting after political viewpoints, and we don't like that you fact-check the president, or then the presidential candidate during a debate. That was ABC, of course, the fact-checking during a debate. NBC, not to be left out. There's this whole flap over the equal time rule, where Kamala Harris appeared on Saturday Night Live. And then, lo and behold, the next day, there was Donald Trump on two other very prominent, and I think even more highly rated NBC programs, because they were during different dayparts.
21:02 Speaker 05 And yet, Brendan Carr can't let that go. I wish I could understand his claim here. There's no there there when it comes to the fact patterns they're alleging are violations, and yet they're yelling it as loud as they can. And now they have the power to make good on some of those threats. The punishment is the point. The chilling is the point. And I think that's why they're doing this. They're looking to exact retribution on all media, but especially the woke media, the liberal media, whatever. A lot of people on the left would say, where is this liberal media you're talking about? You're saying that the networks are too liberal. Whatever people think about their political viewpoints, again, this is wholly different, or at least, to my view, categorically different from regulating indecency on the broadcast airwaves. We could debate that some other time. But like, saying, we don't like the way you're covering the presidential race should be the most highly protected thing under the First Amendment.
21:47 Speaker 05 And these guys just seem willing to trash it.
21:51 Speaker 04 We have to take a short break here. We'll be right back.
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23:31 Speaker 04 Welcome back. I'm talking with Free Press General Counsel Matt Wood about the overt willingness of the Trump administration, and specifically FCC Chairman Brendan Carr, to throw the entire First Amendment directly in the trash.
23:43 Speaker 04 We've talked a bit about the historical foundation of the FCC doing speech regulation in the past, with technological limitations on the airwaves justifying things like the fairness doctrine. Here, 25 years into the 21st century, we're obviously not relying entirely on broadcast communications anymore, and the fairness doctrine hasn't been enforced for nearly 40 years. So you have to start off with another big idea. Is there anything in current US law that gives the FCC authority to regulate content?
24:09 Speaker 05 No, there really is nothing else and there are some things that should take it away. You know, so we've actually at Free Press, we've asked questions about broadcasters' service to their local communities and upholding of their public interest obligations. I mentioned this earlier, you know, how quickly things change. Back in 2020, at the very end of the first Trump administration, there is a thing called COVID and a lot of consternation about how that was being covered or not covered. And so we asked the then Republican FCC, then it was Chairman Pai, we said, hey, you know, broadcasters are putting out heinous disinformation, or at least misinformation about COVID and suggesting that it's not real, that people need not take precautions, that these sort of quackery and other kinds of remedies that Trump himself was suggesting would help people. So we said, you should look into that. There's a whole doctrine that flows from what you're talking about, right? These public interest obligations.
24:54 Speaker 05 There's an FCC rule against broadcast hoaxes. So that rule says, if you knowingly broadcast false information, there's harm to the public that's foreseeable and that harm actually happens, then maybe that's an FCC rule violation. That FCC wrote us a letter saying, no, you know, this is sacrosanct and the FCC rarely if ever looks into the truth or falsity of news coverage and basically called us First Amendment heretics and said, we just aren't going to do this. We, the FCC, should not be looking into newsrooms coverage. We think that was important. There were huge civil rights victories that were won based on that. I think at the time, it very much was justifiable under the First Amendment. The market and the technology has shifted, so I'm not going to say that there's no basis
25:37 Speaker 05 for public interest obligations today for broadcasters, but we have to ask those questions. Now, instead of asking questions and frankly, taking up what has been the broadcast lobby's line for those entire five decades since Red Lion came down, you know, well, yeah, we're special and different as broadcasters, but we shouldn't be under any obligations. We should just get special benefits as broadcasters. Now you have Republican FCC chairs and commissioners who have been reliably pro-broadcast industry for so long, saying, oh, well, we're not actually on your side unless you conform to our political narrative. Even at the end of the first Trump administration, when we asked questions about broadcasters' obligations and especially during the Biden administration, you know, that's when... No, of course FCC can't look into content. Now you have a guy who rode into power, not only willing to do that,
26:22 Speaker 05 but getting this job because he promised to do that. And here he is now in a position to make good on those threats.
26:28 Speaker 04 I've spoken with former Republican FCC Chairman Michael Powell in the past, and his viewpoint was basically that consumers do not care how they get their information. Broadcast, cable, YouTube, it's all the same to them as long as they get the information. That was a pretty reliable government position for a long time, a framework we could lean on. There was a spectrum argument for regulating broadcasts, but not for regulating any other kind of distribution. And because consumers didn't make a distinction, we kind of stopped regulating broadcast. There's also no second order content regulation. You can't say that the FCC can regulate Instagram because you use Verizon or AT&T's spectrum to access it. But it feels like Brendan Carr wants to get there somehow.
27:06 Speaker 05 I could point out some inconsistencies along the way. And yeah, we can talk about Section 230. And basically, the fact that that resides in the same area of the law is what they're clinging to here to say, hey, we have some jurisdiction when we think they don't. Sometimes these feel like crossover episodes, right? Where your favorite or least favorite stars from another show show up. What's remarkable about this, for years, Republicans have said, don't regulate the internet. And they use that as a rallying cry against net neutrality, something that we hold near and dear and have been fighting about for 15 or more years now. I don't know how to say this any more charitably. It's just been a complete fiction, right? Brendan Carr himself, in his dissent when previous Chairwoman Rosenberg restored the FCC's authority over broadband and put net neutrality rules back in place, said this is a Biden takeover of the internet.
27:51 Speaker 05 On the theory that, you know, yeah, the FCC or some other instrumentality of the administration would use nondiscrimination doctrine, which says cable and phone companies can't tell you and me what to say to each other on the internet. Somehow that was cast as like government speech control. Never was, never could be, and yet that was one of their big talking points. So now to see Brendan Carr pivot to say, well, what we want to do is take away Section 230, which, you know, has also made it to 60 Minutes, funnily enough. I mean, this is one of these tech issues that has sometimes cracked through to the mainstream. Basically, Section 230 says that, okay, if you're a speaker on the Internet, you can be liable for what you say. There's all this tort law, there's defamation. Speakers are liable, but the platform hosting that speech is not going to be liable for
28:34 Speaker 05 what somebody else says. So that's what Brendan Carr wants to go after now. Remember that we've said net neutrality is a bad thing, and we don't need that, and the government shouldn't regulate the Internet. But he wants to go after people's speech online, much the way he's doing it now with broadcasters. And the theory is that, okay, those platforms shouldn't be given any kind of immunity from suit if they're curating, if they're making any of these content moderation choices that sites basically have to make, unless they're just going to be nothing but a bulletin board and a fire hose of chronological information. And that's false. I mean, Section 230 came up, not just in the belief that sites ought to be allowed to moderate, but that they should moderate, that it's about honoring these platforms' First Amendment rights to create the kinds of communities and user
29:17 Speaker 05 experiences that they want. So it's complicated, but this is what we've said here for a long time. We at Free Press will criticize Mark Zuckerberg, or Elon Musk, or any of these guys for how they do or don't run their platforms. But the government trying to tell them how to do that is a very different proposition. That's what the First Amendment simply does not allow.
29:35 Speaker 04 Doesn't this run right into the courts? What you're describing in 230 there is an expansion of the FCC's power into content moderation. Someone has to bless this expansion, right? Carr can't just take that power. Congress has to give it to him, or he has to try to file an enforcement action against Facebook, and then Facebook's lawyers will go to court. And some court has to say, yes, this is appropriate. You've interpreted Section 230 in a totally new way that no one has ever thought of before, and it turns out you're right. The FCC does have control over the content on Facebook in this specific way. Does that seem likely?
30:15 Speaker 05 I mean, you're exactly right that that's the way it should go, but it's a little bit sneakier than that. So Brendan Carr has actually asked Congress to give him more authority. So there's some, at least implicit, and I guess even explicit, acknowledgement that the FCC can't just start doing this on its own.
30:30 Speaker 05 So what they've done is, I don't know how much water this should hold or what the distinction is worth, but they basically said, well, we, the FCC, can opine on what good faith means in Section 230, and basically write sort of an advisory opinion and say, aha, you shouldn't get these protections if we don't like the way you moderate content on your platform. And then their hope is that people would be able to take that advisory opinion into courts and have courts rule on what 230 means. So it's a little bit less of a direct power grab, at least in how they've laid it out some of the time, right? Like, I don't doubt at all that he wants that power, and he's asked for more power from Congress. But they've tried to basically say, we, the FCC, can provide some sort of expert construction on the statute, which is funny. Again, it's just based on
31:12 Speaker 05 nothing but proximity. Like, Section 230 happens to reside in the same chapter in the US statutes that the rest of the Communications Act does, but it really has nothing to do with the FCC. And so they're trying to set themselves up as, you know, arbiters of what Section 230 should mean, if not actually judge and jury able to hold platforms or other websites and applications liable for user content.
31:34 Speaker 04 There's this process, which is going to play out, and it seems like Brendan Carr is going to be a character in our lives as the government's main censor for quite some time. I don't know if he'll be able to pull it off. I really don't. I imagine groups like yours, other advocacy organizations, journalists, broadcast networks, they're going to push back. If he ends up putting too much pressure on a Google or a Facebook, one can imagine that their lobbying groups will push back and say, this isn't how it works. They've got a lot of money. We'll see how that plays out. The other side of it all is a little softer, a little squishier. It's billionaires suing networks for defamation. And Trump has famously said he'd like to open up the defamation laws. He's not, as
32:16 Speaker 04 yet, been successful in doing it. But you can see, he has sued CBS for $10 billion over that same Kamala Harris interview. It sounds like CBS might want to settle it, because that family wants to sell CBS. That seems dangerous, right? That they're going to back down on their First Amendment rights because the president is suing them. He sued other organizations for defamation. Elon Musk has sued Media Matters for America for defamation, for calling out anti-Semitic ads on X.
32:48 Speaker 04 There's just a lot of, well, we're rich and we're gonna, we're gonna throw lawsuits at you because you said something we didn't like. And maybe we're gonna get to, there's so much defamation litigation going on that you shouldn't say anything bad about us at all. How is that interacting with the actual government pressure on free speech? Are they related? Are they aligned? Are they reinforcing?
33:09 Speaker 05 Very much aligned and it's almost like we're getting to the, I don't know if it's the final act, but the next phase where there's no distinction anymore between billionaires who are running media companies and the government, all in the person of Elon Musk, right? Who's a special government employee of some sort and wants to have, as usual, you know, all the trappings, all the benefits of being a government employee and none of the obligations. Right? He is getting away with it right now, to a point. There've been a lot of successful lawsuits and preliminary injunctions, temporary restraining orders that have come down. You know, we'll see if this administration wants to turn up the heat even more on the constitutional crises they're creating and ignore those court orders, but that's probably for another, another podcast, another day. One would hope that the companies would stand up and at Free Press, we've never taken any
33:51 Speaker 05 corporate money, we don't work with them or for them, but we sometimes align with them, right? When we have the same viewpoints or we see them standing up for the right principle, we'll side with them and say, yeah, we're gonna defend you against these kinds of attacks. You would like to see them standing up. You would hope that their bottom line interests, not just their principles and their morals, would say, we have to stand up for freedom of the press. And yet, time and again, we've seen them cave in and pay people off, and especially Trump, but not solely him. And then, yeah, I mean, the visual of all of these billionaires, old media and new media alike, right? Literally lining up behind the president at the inauguration is quite a sight. And not a good one for democracy, not a good sign for, you know, actually having people have power and not just oligarchs.
34:32 Speaker 05 So we hope that they'll stand up and fight back, but so far, their instinct has been, we'll just pay up and shut up. When you talk about billionaires and other powerful people, Peter Thiel is a big part of this, right? Famously so. You know, were they still only private citizens? And I say the only there with some emphasis because it's like, they're pretty powerful ones, right? They're not just like other people. They have, if not infinite resources, then a lot to try to grind other people down. You know, then we'd be talking about shield laws protecting reporters from government interference and seeking out sources, or anti-slapp statutes. That prevent any kind of strategic lawsuit that's looking to shut somebody else up in the guise of it being a more typical tort or, you know, other kind of legal case.
35:15 Speaker 05 Those are still important. I mean, we have to be on the guard for those kinds of actions by billionaires and other people looking to shut down dissent and basically to quash any critique of them when they do something wrong. Now we're seeing the unity of the two, right? Like Elon Musk is not only gonna try to sue people for supposedly illegally colluding against X when they decide they don't want to be advertising next to Nazi content. Now, as the head of Doge, he's gonna claim that, you know, it's illegal to provide the names of people he brought in. These, I don't know what else to call them, hackers, you know, Elon Musk devotees, like, I don't, there's no, you know, great name for them, but like, the people he's brought in to infiltrate the government. And then some reporters doing their job and doing a public service were
35:57 Speaker 05 like, here's who these people are. And Elon Musk, who's never had a problem doxing people, right? Like, even before inauguration, he was putting out names and faces of government employees that Doge was gonna target. And guess what? They get tons of hate. He says, ah, that's illegal, right? So now you have a guy with some government power making unfounded threats and claims that, say, reporters are breaking the law and they should not be allowed to publish what ought to be publicly available information. And, you know, this is all flowing from, he said Doge was gonna be the most transparent and publish anything. And as soon as anybody even does anything to test that, he starts crying foul. You know, now that matters. Now that's not just some rich guy trying to exact vengeance on people, which is already terrifying. It's now somebody who's got all of the tools of government
36:42 Speaker 05 at his disposal. And so, yeah, that is a first and then problem at this point, too.
36:49 Speaker 04 We have to take another short break. Back in just a minute.
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38:29 Speaker 04 Welcome back. I'm talking to Free Press Journal Counsel Matt Wood about the government's campaign to shrink the First Amendment, which is frankly horrifying. Right before the break, we were talking about the sort of extra regulatory playbook of threats and lawsuits and just plain mob harassment that Elon Musk has at his disposal. We've seen it in journalism for years now, ever since Gamergate put targets on women, people of color, the LGBT plus community, and made it feel dangerous to cover something as simple as entertainment in video games. And since the start of the first Trump administration, that approach to organized online harassment has spread far and wide, targeting not only journalists, but also people like election workers, public health officials, and anyone else whose work might run contrary to MAGA doctrine. It's fair to say that organizations like media, government, and more have a pretty
39:14 Speaker 04 mixed track record so far in how well they do or don't handle those kinds of attacks. But there is one other player here, the courts. Some lawsuits are going to happen, and some are happening already. The First Amendment does exist, and it does apply. And lots of reporters and media organizations are legendarily precious about protecting and fighting for their First Amendment rights. So some of these expansions of government power that Brennan Card, Elon Musk are pushing are undoubtedly going to end up in court. So that brings us to the big question. Are a bunch of judges going to be willing to say that the First Amendment prevents the Trump administration from doing what it's doing? So that's the campaign to shrink the First Amendment. You can see it. You can see all the pieces of it. Some parts of it have to hit the courts, though. Right?
39:58 Speaker 04 Some of these lawsuits will get fought. Some of these expansions of government power will get litigated. I'm sure you're going to file some cases at Free Press or support some cases at Free Press. Where do you think the courts are? Do you think that this is all going to be successful? Do you think a bunch of, quote unquote, originalist conservative judges are going to say, "The First Amendment is pretty clear. You can't do this."
40:18 Speaker 05 I mean, I have some faith in that. I think the judiciary, even though it's skewed in a lot of places, and especially at this Supreme Court level, towards Republican appointees, that some of them will hold those principles to be meaningful and not simply throw them out because there's a new president in power and he wants them to do his bidding. Not to get too technical here, because I don't know that I could lay this all out now, but we would like to be able to sue over some of these things. But there's a standing question in court, too, right? Like, you know, the public is harmed, and the public has a right to receive information, but that's a little harder to plead than, you know, I, the owner of a website or a newspaper or even a TV station. I was directly punished for something I said. If nobody's willing to stand up from the corporate side, it'll be harder to frame those lawsuits. So I hope that they come forward.
41:03 Speaker 05 And then, yeah, I just don't know. I think there are a bunch of people who are in that same class, let's say, of lawyers coming up in DC through the conservative ranks who have stayed true to those libertarian and if not centrist, you know, more traditionally conservative principles. We've seen a slew of articles coming out. The Wall Street Journal editorial board said, no, you know, you shouldn't be going after CBS and holding up mergers, right? Like, there's a lot of people who I think in the business community say, we're doing what now? Wait.
41:30 Speaker 04 Yeah. Rupert Murdoch, who owns the Wall Street Journal, as well as Fox News and the Post and a bunch of other stuff, he's not going to want to open the door to the government feeling free to regulating the news.
41:39 Speaker 05 Yeah, exactly. I think that gets up to the bench. That's where a lot of these people came from. The Federalist Society has deep roots on the Republican side of the aisle and the judiciary, too. But, you know, would I be willing to wager on this? I don't know about anything. So probably not. But, you know, I think it's a big test. We'll see how well the courts hold up against this kind of strain that if it's not unprecedented in American history, and certainly unlike anything most of us have ever lived through.
42:05 Speaker 04 I understand why tech companies have a financial interest in 230. It allows their platforms to operate in a particular way that's been very lucrative for them. They don't traditionally have big First Amendment backbone, right? They don't have news organizations. They don't have a bunch of reporters screaming they have to tell the truth. They have economic incentives and 230 serves their economic incentives. The media companies, on the other hand, though, they do have big legendary newsrooms, right? Paramount has CBS News. It's a legendary newsroom. NBC has NBC News down the line. There is a lot of that backbone there, a lot of that spine there, a lot of what we do here serves a public interest. We have to fight for the First Amendment. And the argument I've heard from some of those organizations is it's worse if we fight and lose than if we pay Trump to make this
42:50 Speaker 04 go away. If we fight and lose and defamation law does get opened up and some Court somewhere that's sympathetic to Donald Trump says, actually, we're going to overturn the precedent that says public figures have a higher standard to reach before they're defamed. That's a disaster for everyone. We'll pay the money and avoid the worst outcome. Do you buy that?
43:10 Speaker 05 I can see where they're coming from, but I don't think it's the right answer. And especially now, whatever people's calculations might have been about paying off candidate and for that time, private citizen Trump and defamation law. Once that is backed with the threat of, hey, and if you don't pay up, not only will I take you to court and try to get these ridiculous and frankly, exorbitant sums out of people for supposed defamation that's not even, has no merit, if they actually were to argue it out in court. Like now it's backed by this threat of government action as well. Like that's where I think they just have to draw a line and say, yeah, it might feel more convenient to pay off this president to not only avoid the defamation lawsuit and the potential loss in court there, although I think they'd have a good case if they fought it out.
43:53 Speaker 05 But when it's backed by this threat of, oh, by the way, I'm president once again, and if you don't listen to me, not only will I take you to court, but I'll yank your broadcast license, I'll put you in jail, I'll investigate you with all the powers at the disposal of the federal government. Like that's where I just don't think one can make that calculation, but some of them might. I think the reporters and the editors have a lot of scruples. You know, do the executives upstairs? That's a different question. And that's basically why Free Press exists, my organization, you know, to talk about not the journalists who are out there on the front lines doing this work, but the consolidation and the power and all of the control over those journalistic decisions, decisions flowing up into bigger and, uh, bigger and bigger and less and less accountable national and multinational conglomerates that might see an interest in, you know, paying off Trump
44:38 Speaker 05 to make a buck here and there.
44:40 Speaker 04 Well, this is pretty dire. What do you think happens next? What's, what should people be looking for?
44:44 Speaker 05 As I said a moment ago, there've been some successful lawsuits. We'll see just how willing the administration is to comply with those. Those have been mostly around Doge coming in and like shutting off payments or grabbing people's private data, something that we're all so deeply concerned about here. There haven't really been any follow throughs. There have been plenty of chilling speech, right? And chilling language from the government, from Trump and from Carr and other people in the administration, saying, we're going to come after broadcasters and take their licenses, or at least punish them. You know, we'll see. Like Brendan Carr, again, as I said earlier, making good on the threats, or at least trying to. It's not just rattling the saber. Like, there's actually now a docket open at the Federal Communications Commission about the 60 Minutes interview.
45:25 Speaker 05 I think there's lots of dire threats right now, but nothing yet that's fully ripe and in court on strictly First Amendment grounds. I hope that we'll have some ability to rely both on the corporate litigants here to defend themselves, and then on judges to follow the law, or at least follow precedent, and not just to knuckle under to the political pressure they're under now, too. But, you know, unfortunately, and somewhat terrifyingly, all to be determined.
45:48 Speaker 04 Yeah. All right. Well, Matt, it sounds like we're gonna have to have you back several times in the next few years. As long as neither one of us is in jail, which that used to be a 0% probability, but I think it's greater than zero lately.
45:59 Speaker 05 It'd be nice if this was just a joke, and we could laugh about this, but it's all too real. And the fact that this isn't our vocabulary now is like, the press is the enemy of the people, and reporters should go to jail for doing their jobs. It is literally terrifying, and I think people in watching this crumble sometimes don't have the brain space to take in all of the emergencies. I wouldn't say this one is worse than many other things that the Trump administration is doing, but it's up there, and it's really something that drives the whole engine, right? Like, their ability to control the narrative and to punish dissent is what lets them get away with so many other things as well.
46:38 Speaker 04 I'd like to thank Matt Wood for joining me on Decoder, and thank you for listening. If you have thoughts about this episode, or really, anything else, you can email us at [email protected] . We really do read all the emails. You can also hit me up directly on Threads or Blue Sky. And you also have a TikTok, for however long TikTok lasts, and now a new Instagram. They're both at DecoderPod. Check them out, they're a lot of fun. If you like Decoder, please share it with your friends and subscribe wherever you're a podcast. If you really love the show, hit us with that five-star review. Decoder's production The Verge are part of the Vox Media Podcast Network. Our producers are Kate Cox and Nick Statt. Our editor is Ursa Wright. The Decoder music is by Breakmaster Cylinder. We'll see you next time.
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