Trump’s on a Collision Course with Communications Decency Act

President-elect Donald J. Trump has been nominating cabinet positions in rapid succession—many of which have raised some eyebrows. Tulsi Gabbard for director of national intelligence, Pete Hegseth for secretary of defense and the abortive nomination of Matt Gaetz for attorney general immediately stirred controversy.

Trump’s pick for chairman of the Federal Communications Commission—Brendan Carr—hasn’t generated the same trepidation, but what he said recently is cause for concern. “Combating tech censorship is going to be one of the top priorities for me. We need to restore Americans’ right to free speech,” he said in a recent interview.

At first blush, this might seem unobjectionable. Who doesn’t appreciate freedom of speech? It is central to the American ethos, and Big Tech has increasingly become an easy target for officials. Social media giants have been under fire for years for allegedly censoring conservatives, quashing perceived disinformation and “shadow-banning” users who don’t align with Big Tech’s political values.

“You mentioned Facebook and other companies,” Carr said on Fox News. “They’ve been part of a censorship cartel that have worked with advertisers. They’ve worked with government officials to censor the free speech rights of everyday Americans, and that’s got to end because censorship isn’t just about stopping work. It’s about stopping ideas.”

This isn’t a fringe notion either. In 2020, Pew found that 90 percent of Republicans believed that social media companies engaged in such censorship. For the most part, social media giants have largely denied any wrong-doing, at least on a large scale, but so long as there are fact-checkers and moderators, some bias will always exist. That’s just part of the human condition.

So how will Carr try to take on the social media “censorship cartel?” That remains to be seen so long as Section 230 of the Communications Decency Act remains law—and let’s hope it stays that way. As I wrote in 2021, it “shields social media platforms like Facebook, [X] and YouTube from being held legally responsible for what their users say and do on their sites. Further, it empowers administrators of these outlets to moderate their own content, which allows them to remove posts as they see fit, including those that are hateful and illegal.”

This is important too. Thanks to existing case law, without Section 230 protections, social media giants might be liable for everything users post on their platforms if the companies decide to moderate content whatsoever. That would leave social media platforms with two unenviable choices.

They would either have to fact-check and moderate every single post to ensure that none of them would result in legal exposure. This would be burdensome and time-consuming, especially considering in 2022, there were an average of 500 million tweets per day on Twitter. The alternative would be that they would need to eschew moderation, which would turn social media into a cesspool of depravity—with even more hateful, spammy and inappropriate content than exists now.

Thankfully, Carr doesn’t have the power to repeal Section 230 or institute rulemaking to reinterpret it, and it limits what he can do to social media companies. However, there is a role for the government: It ought to get out of the way, but government officials love interfering in private business affairs. Meta Founder Mark Zuckerberg has admitted to government’s meddling in social media. “In 2021, senior officials from the Biden Administration, including the White House, repeatedly pressured our teams for months to censor certain COVID-19 content, including humor and satire,” he said in congressional testimony.

It may take some time to learn how Carr wants to curb social media’s decision-making, but I’d urge him to conclude that the answer isn’t more government—but less. Carr should ensure that there are fewer instances of the government pressuring social media giants to censor certain information, and he should support Section 230.

Its protections are important to foster a thriving and enriching social media experience, but if Carr truly is concerned about Big Tech censoring conservative viewpoints, then he should let the free market sort the matter out. When conservatives tired of Twitter under Jack Dorsey’s leadership, they fled for Parler and then Truth Social. Now that Elon Musk owns Twitter—known as X today—progressives are fleeing for Bluesky.

In short, people vote with their feet and markets respond. My advice to the Trump administration is that the free market works, if you let it.