Incoming FCC Chairman Brendan Carr’s Beef With NewsGuard Is Legally Dubious and Empirically Shaky
Brendan Carr, President-elect Donald Trump’s pick to chair the Federal Communications Commission (FCC), wants to “dismantle” what he calls “the censorship cartel.” As Carr defines it, that cartel includes not just Big Tech companies such as Meta, Apple, Microsoft, and Alphabet (which owns Google) but also NewsGuard, a company that rates the credibility and transparency of news and information sources. Carr says NewsGuard has conspired with other businesses to “violate Americans’ constitutional freedoms” by silencing “news outlets and organizations that dared to deviate from an approved narrative.”
Carr’s complaint is puzzling for several reasons. First, his claim that NewsGuard is violating “Americans’ constitutional freedoms” is legally nonsensical, since the First Amendment constrains government action, not the decisions of private businesses. Second, the First Amendment protects NewsGuard’s commercial activities, which include researching news outlets, evaluating them, offering guidance to advertisers, and selling filters based on its credibility assessments. Third, Carr’s implicit charge that NewsGuard is biased against conservatives, which echoes complaints from Republican members of Congress and organizations such as the Media Research Center (MRC), does not seem to have a firm empirical basis.
How Could NewsGuard Violate the First Amendment?
NewsGuard was founded in 2018 by former Wall Street Journal publisher L. Gordon Crovitz and Steven Brill, founder of The American Lawyer and Court TV. “NewsGuard is a private organization that conducts fact-checking and provides credibility ratings for news and information outlets,” notes Ari Cohen, lead counsel for tech policy at the Foundational for Individual Rights and Expression. “These ratings can be seen by users utilizing a browser plugin to help them assess news sources, and can be licensed by online services for various purposes including assisting in content moderation decisions.”
Contrary to what Carr claims, a private organization cannot violate the First Amendment. As Cohen notes, Carr himself has previously acknowledged that point. “Whether it’s the government shutting down speech (a 1A issue) or a private platform doing it (not 1A), these decisions aren’t made by an oracle of truth,” he wrote on Twitter (now X) in 2020. “It’s always a person in power (merely fallible or with a political agenda) that censors speech.”
It is certainly true that fact-checkers and news media analysts are fallible and may be biased, and there is no shortage of complaints about specific calls that NewsGuard has made. But the crucial difference between a business like NewsGuard and the government is that only the latter has the power to coerce compliance. People are free to evaluate NewsGuard’s judgments, accept or reject them, and act accordingly. Like the news outlets it evaluates, NewsGuard is subject to competition and to criticism that may dissuade potential customers.
None of this is true of the government, which has a legal monopoly on the use of force to impose its will. If legislators or regulators restrict what people can say and see online, websites cannot ignore those edicts without risking civil or criminal penalties. That difference is reflected in the wording of the First Amendment, which says “Congress shall make no law…abridging the freedom of speech.” Courts have extended that injunction to other federal agencies and, via the 14th Amendment, to state and local governments. But as Carr conceded in 2020, private decisions about which speech to host, even when they strike some people as arbitrary, unfair, or politically biased, are not “a 1A issue.” The same goes for the private advice that informs those decisions.
In fact, those decisions and advice are forms of speech protected by the First Amendment, as the Supreme Court recognized this year in Moody v. NetChoice. “The Constitution protects the expression of groups like NewsGuard, which simply provide opinions on the credibility of content and information sources that other services may choose to adopt or ignore at their discretion,” Cohen notes. Or as Crovitz put it in a written response to Carr’s charges against NewsGuard, “our journalism is itself speech protected by the First Amendment.”
Crovitz added that “we’re concerned to see a government official using the powers of his office…to attempt to prevent a private company (NewsGuard) from producing journalistic content.”Cohen shares Crovitz’s concern. “Carr’s message is unambiguous,” he writes. “NewsGuard’s expression and viewpoints are disfavored, and both NewsGuard and any expressive platform caught utilizing or adopting it are at risk of FCC retaliation. It’s difficult to imagine a more clear-cut attack on First Amendment rights than that.”
All of this would be true even if, as NewsGuard’s critics claim, the company were systematically biased against conservative voices. But there is little evidence to support that claim.
‘A Tool to Censor Conservative Speech’
“We wonder if NewsGuard [is] used as a tool to censor conservative speech,” Rep. James Comer (R–Ky.), chairman of the House Committee on Oversight and Accountability, said last June after revealing that his committee
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