Trump Official Brendan Carr's War on Free Speech
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Look at every hate speech law around the world and look how it's enforced. It is always enforced by the powerful against the powerless. Like some marginalized group speaks out against police or the government and they say, well, that's hate speech against us and we're going to punish you for it.

Brendan Carr isn't a household name yet, but he should be. As chair of the Federal Communications Commission, he's quietly positioned himself as one of the most dangerous figures in the Trump administration's ongoing war on free speech. Carr has repeatedly used his government position to intimidate journalists, punish media outlets, and pressure tech companies into cracking down on free expression. And he has done all of this while building his profile as a free speech influencer on X.

If left unchecked, Carr's censorship crusade could fundamentally reshape our information ecosystem and have massive consequences for anyone seeking to speak freely without fear of government retaliation. I'm thrilled to have Mike Mazenik, the founder of TechDirt, which is the best outlet covering all of these issues, joining me today. We're going to

be breaking down who Brendan Carr is, why his agenda is so dangerous, what exactly he's doing to dismantle free speech in America, and how it all fits into a much bigger movement to control who can speak freely online. Mike, welcome to Power User. Yeah, thanks for having me. Always fun to talk to you. So,

So just to sort of start off and level set, can you explain to people that might not be familiar, what is the FCC? What does it regulate? So it's the Federal Communications Commission. Sort of the historical element of it was that it was put together to manage the sort of allocation and any regulation around social

Spectrum is, you know, the things in the air, in the space that allows for some sort of communication, whether it's television broadcast, radio broadcast. That's what it was originally designed for because, you know, as television and radio were first invented in the early 20th century,

people began to realize they were using spectrum to broadcast this content, and there was a limited amount of it. So each television station has some slice of spectrum, each radio station has some slice of spectrum. It allows you to communicate over certain distances, certain types of content.

And what people realize is there's only so much of it. And if multiple people are broadcasting over the same spectrum in the same space, you will get interference and you will knock out some signal and cause problems with others. So they said somebody needs to sort of present the rules of the road and figure out who has which spectrum, what they can do with it, what the rules are. And so that was sort of the beginning of the FCC. It was created to sort of manage that single aspect of

Its role has sort of changed a bit over time, but that is really the basics of it. It is supposed to manage how Spectrum is shared. The biggest sort of change is that it also has some say over certain types of telecommunications services. And it can do certain kinds of regulations on that, including...

in some cases, which it doesn't really do anymore, price setting. So it can tell phone companies how much they can charge for certain things, which it has mostly said, "We're not going to do that anymore." So I think there's what the FCC has traditionally done and then what this man, Brendan Carr, who is currently running the FCC, wishes it could do. Can you also explain who Brendan Carr is? For people who don't know, how did he end up as chair of the FCC?

He has been at the FCC for a while. In fact, for most of his career, he has been at the FCC. He had a brief stint where he was just a telecom lawyer at a big law firm in D.C., but was only there for a few years and then went on staff

for Ajit Pai, who was the former chair of the FCC and had been just an FCC commissioner under the Obama administration. And so Carr went in as a staffer for Pai and then eventually rose up to become general counsel of the FCC. And then when there was an opening during the first Trump administration, Carr was appointed as one of the commissioners. And then he's been a commissioner ever since, was appointed.

renewed by Biden. Just for background, the FCC has five commissioners and it's always three who are, whichever party has the presidency, they get three commissioners and the other party gets two commissioners. And so, you know, he's been a commissioner since I think 2017, but before that he was the general counsel of the FCC and deeply involved in a bunch of things the FCC did.

And then when the second Trump administration began, he was moved from just a regular commissioner up to being the chair of the commission. He also played a role in Project 2025, right? Didn't he write the Project 2025 telecom stuff? Yeah, he wrote the chapter on sort of telecom and broadband stuff, which raised a bunch of eyebrows because he was an FCC commissioner at the time and people who are in the government are not supposed to be working on documents like that. I forget the exact details. I think he

He either claimed he got a waiver for it or he said that it wasn't directly referencing his job, which is obviously nonsense because it very much was directly on point with what his job is. And so that was pretty sketchy to do that.

You know, the other thing about Kara is that he really got into social media, and in particular Twitter/X, and just really sort of dove in and really seemed to like the engagement and sort of the fighting nature. Well, I want to talk about that, because I feel like this is how he got on my radar. I don't generally cover tons of...

tech policy stuff, but he started to crop up on Twitter, fashioning himself as a free speech warrior, almost trying to become an influencer. I think he has something like 100,000 followers, but he's really kind of made himself into this like alleged free speech crusader where he just goes and attacks journalists. I think he came into my mentions one time and I'm like, why? Wait a minute. He follows me on Twitter, which is, you know,

It was kind of surprising that I had a sitting FCC commissioner following me and mocking me, which was always fun. Yeah. Well, so when did he really start to lean into this public profile of being a free speech warrior? Because that's how he really positions himself. And I think that's what I'm sort of interested in exploring today is how he became this alleged free speech warrior and what led to that.

It feels like something that he sort of picked up over the last few years. I couldn't put a specific point on it. I've never met him personally. I've engaged with him online multiple times. But, like, almost everybody I know who's met him seems a little bit surprised at sort of...

what he's turned into. You know, a lot of people say he's very smart and very nice and personable in person. And people had said he was, you know, fairly thoughtful, kind of middle of the road, obviously a Republican and conservative, but, you know, sort of what you would consider traditional conservative Republican kind of values. You know, the thing that I had definitely seen going back to when he was general counsel was that he took positions that were sort of

what used to be, you know, Republican conservative position on telecom issues, which was generally, uh,

We want the FCC to not do anything, that the FCC should basically give up its regulatory authority on telecom and broadband. Whatever was best for the big telecom companies was going to be the best. And that would be, you know, stepping back, letting them do anything they wanted, not using any sort of consumer protection authorities that they have, not using any authority to block

mergers or to go after companies in any way. They're very against net neutrality. Sort of giving this the standard like, oh,

oh, any of these things is this awful regulatory burden. And, you know, we need to take away the regulations to allow innovation to thrive. Sort of very traditional Republican conservative, the types of things that you saw from Republican and conservative commissioners on the FCC going back to, you know, the 80s and 90s and early 2000s. And then it felt that somewhere during the Trump administration, he sort of

It feels like something clicked in his head and he's like, "Oh, this is how you play the game." I want to read you one tweet that he posted right after Trump won, which was, he tweeted, "We must dismantle the censorship cartel and restore free speech rights for everyday Americans." I mean, he's posted stuff like that, like, basically a steady stream of it nonstop. As you mentioned, it's like, in some cases, he wants no regulation, and then in other cases, it seems like he's really

wants almost like over-regulation. He wants the FCC to interfere in ways that they haven't previously. And I want to talk about one of the most recent examples, which I know you covered, which is he threatened to investigate NBC's broadcast license because they had Kamala Harris on Saturday Night Live. Can you talk about that?

Is there a precedent for this? And is this something that the FCC normally gets involved in? Part of the problem with this is that there's so many layers to unpack. And unless you're really deep in the weeds to actually understand how ridiculous this is, it takes so much to explain. So...

So there is a rule. There is this rule called the equal time rule. And there have been a few different rules that the FCC has had in the past, again, regarding broadcast television. And sort of the two famous ones, and they're sort of opposite sides to the same coin, were the fairness doctrine and the equal time rule. And the basic idea behind both of these is that, well, there's scarce spectrum. There's only so many television stations.

And because there's nowhere else to get your news other than television or radio or maybe newspapers, and because public spectrum is a public good that the government is licensing for these people to use, the government and the FCC in particular can put certain restrictions on how they use it, which in any other case would have serious First Amendment implications. So part of that was originally the Fairness Doctrine saying basically if you are using

you know, doing a segment on a particularly controversial topic, you also have to present the other side of it at a sort of equal rate. And then the equal time rule, which was the same thing effectively but for politicians. So if you give airtime to a particular politician,

you have to give their opponents in a campaign equal time. Now, both of these historically have been the things that Republicans hated. They have, you know, the screeds against both of these rules...

going back decades, was like, this was absolutely hated. And in fact, Ronald Reagan effectively got rid of the Fairness Doctrine, which I actually think was a reasonable thing to do. I know that people will disagree with me. I agree with you, yeah. A lot of people were very supportive of the Fairness Doctrine. A lot of people today, I think falsely, but we don't have to go down this road, think that the problems that we see today came from getting rid of the Fairness Doctrine. I can argue against that. I can argue why that's wrong. But that's a whole...

tangent that we don't need to go down. But the equal time rule stayed in place. But again, like historically it's always been like,

the Republican point of view was like that it should violate the First Amendment. There is an argument that if it ever went to the Supreme Court again, the Fairness Doctrine or the Equal Time Rule, they would say that, yes, it violates the First Amendment when they originally ruled on it in a case, I think, in the 70s called Red Lion. They basically said, you know, you can put these restrictions in place only because it is scarce public spectrum and there is no real competition for where you can get the news from.

Obviously, the Internet has changed all of that. And so now there are countless sources, an infinite number of sources that you can get news from. And so that sort of ruling and that sort of rationale for allowing these kinds of restrictions no longer applies. And so it's weird, first of all, that a Republican would ever make the claim that we should be using the equal time rule. That part is bizarre.

Then you get to this, which was, you know, this was right before the election. Saturday Night Live had Kamala Harris on in the opening bit. You know, they did this this joking thing with Maya Rudolph and it was, you know, a big deal. And Carr immediately went on to Twitter and basically said this violates the equal time rule because NBC. He lost his mind.

over this. He completely lost his mind. So he went on Twitter, he went on Fox News, and he started screaming about how this violated the equal time rule. Now, again, a couple things to be really clear about, which is that the equal time rule, for whatever little is left of it, and where-- and again, it's like almost never enforced, it only applies to broadcast television. The specific affiliates

Not to NBC proper. NBC proper is, you know, they contract with affiliates who have the broadcast spectrum, and technically the FCC only regulates those affiliates, not NBC itself. And of course, what has always been left out in all of this was that NBC has decent lawyers, and they actually recognize that the equal time rule was potentially an issue, and so they gave free time to Donald Trump the next day during a NASCAR race.

And in fact, you know, you could argue that the time that what they gave Donald Trump was even better because with Kamala Harris and Saturday Night Live, she was part of a bit which was scripted out for her. I'm sure she had some input in it, but it was a bit. Whereas for Donald Trump, they gave him just free airtime to do whatever the hell he wanted with it.

which is very different. But, you know, so they satisfied the equal time rule. And yet Carr sort of went off on this crazy rant about it. This is a thing that Republicans have really never supported and always insisted was unconstitutional and a violation of the First Amendment. So you have this guy claiming to be a free speech warrior and a big believer in free speech using this law that, you know,

I'm sure if you had asked him 10 years ago, he would have said violated the First Amendment. He's coming out there saying, I want to use this to basically punish NBC for platforming Kamala Harris, even though they abided by the law, clearly by what they did with giving Trump airtime the very next day on the NASCAR broadcast.

And so all of that is crazy. But the underlying point that has to be made clear is that he's clearly doing this to just punish NBC for putting Kamala Harris on SNL. Like, that's it. It's direct, obvious punishment for speech. It is a very clear violation of the First Amendment. It doesn't go beyond that. Like, understanding all of the sort of details is important for how it is that.

But for him to claim that he's a free speech supporter and then to attack this and a whole bunch of the other attacks, some of which I'm sure we'll discuss, is just so mind boggling that anyone will buy into his argument that he's a free speech supporter. Right, because he's basically using the government to intimidate a media company into censoring themselves and not platforming a Democrat again. Exactly. The end result of this, no matter what happens with NBC, is that

Every news station, every major broadcast TV station, network, even I'm sure radio stations too, because he's going after some radio stations, will now...

be much more hesitant about platforming Democrats. So because he might attack them for it, he might use the power of the government to basically punish them. And in a lot of cases, even if they would win in the long run, even if this goes to court and the win, the process itself is the punishment. They go through this investigation. They have to hire lawyers. They have to provide all this paperwork. They have to go through this process, which can take months or years in some cases, and

And that itself is the punishment. So he is punishing them and he's basically indicating to them very clearly, if you don't want to be punished this way, do not platform Democrats. Right. And even if they were to follow through and go through that entire legal process, I'm sure he would create a PR nightmare, you know, the whole way down. And God knows what would come out in discovery in those types of lawsuits, I'm sure would be weaponized further against, you know, these media companies. So it just seems like this whole...

you know crusade to intimidate the press which is terrifying alongside obviously uh you know trump and others in the administration talking about silencing uh the press and of course kicking them out of the press briefing room and things like that he hasn't just attacked like traditional media companies though too he's also attacked social media companies and i want to talk about this

fake crusade that he has against social media censorship. Because he's basically also tried, like what he's done to these media companies is also sort of tried to do to social media companies, basically pressuring them into doing his bidding under the guise of free speech. Most recently, he sent this letter threatening Meta, Google, Apple, and Microsoft, accusing them of violating free speech by working with fact-checking services like NewsGuard. Can you explain what's going on here?

Again, you have to peel back the layers here because there are multiple layers of absolute nonsense here, all of which are wrong.

But understanding how to get there is so involved. And so I apologize. Let's start with NewsGuard. Okay. So NewsGuard is a company. It was set up by two long-term media execs, L. Gordon Krovitz, who was, and this is really important, he was the publisher of the Wall Street Journal for many years. Notorious liberal institution. Yeah.

He is a dyed-in-the-wool conservative Republican. He was the one pushing all of this sort of, you know, right-wing stuff in The Wall Street Journal for years. You know, and so he and some other sort of media folks created this thing called NewsGuard, where they basically said, look, we realize that there's this

explosion of news services out there and people no longer know exactly who to trust and which ones are reliable and which ones are credible. So we're going to create a methodology to judge different news services in terms of, you know, how much can you trust them? I actually have some problems with their methodology, which they got really mad at me about. I mentioned that in a post and the NewsGuard people were

Not happy that I criticized their methodology. But Gordon Krovitz himself said, I respect your free speech rights to criticize our methodology, which I appreciated. But, you know, they basically ask a whole bunch of questions of different news sites. There's all different stuff about like, do you have a masthead? Do you say who your editor is? Do you do corrections? If someone finds something wrong, like there are there are things that are important in there. And then out of that, they give everybody a score.

And there are some other companies that then use that score for different things or different people use it. You know, I'm not even sure how a lot of people use it, but some of the social media companies were using that as one signal of many in terms of rating how trustworthy certain news sources were and

therefore probably rolling that into their algorithm in some form or another. It's not even exactly clear how much. And I think the sense that I got from the different social media companies is that, you know, they felt it was a useful tool, but certainly not the one that was determinative of, you know, whether or not this news source would appear or not. If you look at their ratings, these are not, like, left-wing biased, you know,

I think they gave the New York Post or someone a neutral rating. There's always scandals that basically they're rating these right-wing places that I think a lot of us that work in the media don't consider very credible as more credible than I think most people would agree. Yeah, which is why, as I said, I have issues with their methodology. I think it's an interesting experiment and they're free to do it. It's part of their free speech. But again, the important thing too is that no matter what comes out of it,

even if their methodology was absolutely terrible and I thought was the complete opposite of reality, that is still their free speech. What they're doing is expressing an opinion on the trustworthiness of a news source. An opinion is quintessential protected free speech under the First Amendment. So they are expressing an opinion. This side is trustworthy. This one is not. You can have that opinion. I can have that opinion about different sources.

And that's all it is. And yet, for some reason, Republicans like have freaked out about NewsGuard. And I don't fully understand where that came from. I know Jim Jordan in the House started a, you know, investigation of NewsGuard. You know, I'm sure there was like some, you know, crazy nut job investigation.

right-wing publication that got dinged by NewsGuard and they claimed it was this big conspiracy and got Jim Jordan to investigate. And then, you know, once Jim Jordan investigates, the reality of the situation goes out the window entirely. And then it just became this like weird evidence of the censorship industrial complex is usually the way they put it, which is absolutely nonsense. But it's basically just this company that gives a rating that they think some news sites are trustworthy and some are not.

And so Brendan Carr basically had an issue with these social media companies and accused them of censorship because NewsGuard was one input in their algorithms? It seems that way. I mean, he took it further. He said that by relying on NewsGuard to censor content, which again, they're not actually doing. It's also, you know, if anything...

it may play into their rankings a little bit. One of many, many different signals, which wouldn't be censorship anyways. Again, like the, the, the algorithmic rankings that the social media sites put on things is also their opinion. These are all opinions, the opinion of like, what do we think you would like to see next? And again, that is protected speech because it is opinion. Opinions are protected. And so this combination of things that then what car is arguing is that doing this, relying on news guard, uh,

to influence your algorithm, which he says censoring, which it's not, then is not being done in good faith, which is an important phrase, sort of important phrase, because to him, Section 230 of the Communications Decency Act, which is a whole other issue, has in one section a thing that says any website...

can moderate without liability if they are trying to deal with certain types of objectionable content in good faith. And so he's claiming, because according to him, using NewsGuard is not in good faith, therefore they should lose Section 230 protections. And Section 230 protections ensure basically that they're not

liable for the content that's posted. So like if somebody posts something inflammatory on Facebook, Facebook itself isn't liable, right? Exactly. There are a few different elements to Section 230 and it is incredibly misunderstood and it's a little more complicated than most people think of it. But the very basics of Section 230 is that if someone violates the law through their speech, usually defamation or something along those lines, creates some sort of tort with

They post on Instagram, "Screw my boss. She's a whatever, whatever," and it's defamatory. Right. That the liability should go towards the speaker, not the platform that it was published on. Right? So it doesn't get rid of defamation claims. It doesn't get rid of any claims if there is a tort. It just says where you place the liability is not on the service that they used, but on the person who created the content. Which makes sense because that's the person that said it, not Mark Zuckerberg. Exactly.

Now, there is an element of Section 230, which also then has been used and is said to be used directly on purpose that says you also cannot blame the platforms for their moderation choices. And this was done deliberately by the authors of Section 230 because...

because they wanted to allow platforms the freedom to do content moderation because they realized if they did nothing, then platforms would be filled up with spam and porn and garbage. And if you wanted to create a place that was, let's say,

family friendly, the kinds of things that Republicans used to claim they wanted, you know, that you needed to give companies incentives to actually do that moderation. And that was part of the point of Section 230. Any moderation decisions that they made were supposed to be protected from liability. So if you took some content down, you shouldn't be sued for that because, you know, it is part of their policy.

power to create the kind of platform and community that they want. Yeah. And it seems like Carr is against most forms of content moderation. I mean, it's interesting. And this is part of this, I think, larger conservative crusade of that sort of, like you said, content moderation itself is censorship. You heard this from Elon Musk as well. Elon Musk, obviously, despite all of his claims of free speech absolutism, moderates totally

Twitter acts quite heavily, right? You've been banned, right? I have been banned. I'm back on. Travis Brown and many other journalists remain banned. You can't say the word cisgender without getting a flag. So, you know, and by the way, we do want some level of content moderation, even as you mentioned, just to keep off CSAM material or, you know, violative content violence, like gore, right? But Carr seems to like, you know, be pressuring these companies with, you

as you said, sort of like claiming that he could like revoke Section 230 protections or something. And I was struck by this when Mark Zuckerberg, because, you know, just before the election, Mark Zuckerberg comes out, I think anticipating some of this intimidation and said, we're going to roll back. Like, we're sorry, we over moderated too much. Do you think that that was a response to Carr coming in and knowing kind of his stance on this stuff? Yeah, I mean, it was a response to a few things, obviously. And I think

You know, Mark Zuckerberg really misrepresented things. I don't know exactly why, if he was not well-informed, which doesn't make sense, or if it was, you know, more specific to this. So I think, you know, he was getting threatening letters from Carr. He also had Donald Trump write a book where he said we should imprison Mark Zuckerberg for the rest of his life, which...

Seems like a threat. And so it really felt that Zuckerberg caved directly to pressure. Now, the ridiculous thing was that in the process of doing this, in caving to the Republican threats against him from Carr and from Trump...

He claimed that he was doing this because he was sick of dealing with the threats from the Biden administration. Right. Even though he admitted very clearly, like, you know, he gave this interview on Joe Rogan where he talks about, you know, the horror of the Biden administration calling up Facebook employees and cursing at them, which he misrepresents, by the way. And then he says very clearly multiple times on Joe Rogan, but we told them no.

And so if the government comes and yells at you about your moderation choices and you are free to say, no, we're not going to change. We stand by our policies. Then as the Supreme Court said just last year in a case about Facebook and, you know, demands from supposed demands from the Biden administration, like there's no evidence that Facebook was pressured by the government at all in any of this.

And yet here, now we have very direct threats as opposed to the supposedly indirect threats of the Biden administration that

Trump and Carr made very direct threats against Zuckerberg and others. And then immediately he's like, okay, we're going to start moderating the way you want. And in fact, it was then later reported that before Zuckerberg announced the plan, he went to Stephen Miller, which is a high level Trump advisor, and had him go over the plans, the change in moderation plans to see if they were okay.

which should raise all sorts of First Amendment alarms. Like if you are a media company and your editorial policies first get approved by the president, that's a First Amendment emergency. And it should be seen as that. And yet we don't hear that. And instead we hear that Carr is some great, you know, First Amendment free speech warrior. Right. He's bringing free speech back to meta. Another platform that Carr has targeted is TikTok.

This has been in his crosshairs forever. He advocated aggressively for the TikTok ban. Obviously, you know my feelings on this. I feel like that ban is completely unconstitutional and restricts the speech of 170 million Americans. But why do you think that TikTok has come in his crosshairs? And what did he-- Can you sort of walk through the ways that he has sought to intimidate that?

It's a little unclear sort of the motivation behind it, right? I mean, I think it's not all that different than the motivation among a lot of politicians and sort of the political class these days that just are like completely frightened by TikTok and the fact that like the kids these days are not... Speech. Yeah. Too much speech. Yeah.

Too much speech that they don't like. The whole idea of banning TikTok in the first place, remember, came about when Donald Trump got mad at them because a whole bunch of kids on TikTok reserved tickets for a rally and then didn't show up and made this arena appear half empty, which is, again, speech, right? And then I just want to say, too, because I made another video about this recently, but then Gallagher and Warner were on a panel recently together in Munich talking about the quote-unquote real...

the TikTok was banned, and they brought up speech again. They were talking about pro-Palestinian speech and how that was what it was able to get the ban through. There were a number of politicians who admitted directly, and again, like, you know, sort of confessing to violating the First Amendment, that they were upset that pro-Palestinian speech was popular on the platform, and therefore that was one of the reasons why they needed to ban it, which is problematic for all sorts of reasons. So,

The case happened and the Supreme Court, I think, ruled incorrectly. But again, they're the Supreme Court, so you can't entirely question that. But Carr was 100% supportive of this idea that TikTok is bad.

As for why, who knows? You know, it is not entirely clear. I think it could have just been general fear of China. I mean, the FCC had been a part of earlier efforts to sort of block Chinese companies from operating in the United States.

And so it could be that, it could be just, you know, there was all this constant like national security sort of doomerism that went around about how it was, you know, a national security threat. Like there was spyware on it, which has never been shown and never been proven. And so, you know, I think it was just one of those things where he was sort of playing the role of the anti-China, we have to say. - Yeah, the China hawk. I just think as somebody, again, that professes to be the ultimate free speech warrior,

It's just so interesting to see the way that he, it all goes out the window continually when he's dealing with these platforms. There are so many contradictions in the way that Carr acts. And I want to talk about one other one, which is that, you know, again, like Carr came out of this world of the sort of Republican conservative FCC commissioners that for the last 20 years have been against the concept of net neutrality.

And we don't have to get too deep in the weeds on net neutrality, but the basic concept is that your internet service provider, whether it's AT&T or Verizon, Comcast, whoever, that they shouldn't be allowed to throttle or block certain content or they shouldn't be able to say like, oh, you know, if you want to have access to Netflix and YouTube, you have to pay extra, that they shouldn't have the right to do that. They're sort of core infrastructure. They're sort of, you know, the highways, the information superhighway, whatever you want to call it. And so therefore they shouldn't be able to block it.

And for a little while, almost exactly 20 years ago, there was sort of a bipartisan belief in this concept of net neutrality. And there was just a question of how would you actually put that into law? There were a couple attempts by Congress to do stuff, but Congress can't do anything. And then somewhere along the way, it became a partisan issue. And I should be clear here. This is only true in the political class. If you poll the public...

overwhelmingly, it's like 84% support net neutrality. And it's like 70% of Republicans and like 95% of Democrats or something, something crazy like that. Don't quote me on those numbers, but it's something in that, in that range. But the political class has decided that net neutrality is, you know, evil government takeover of the internet regulation. It's Obamacare for the internet, depending on who you talk to, they have all of these things. And

And Carr was one of the leading voices in saying that net neutrality is evil and, specifically, that it violated the First Amendment. And this is an argument that has made the rounds a little bit, basically saying that because the ISPs, your Comcast, Verizon, whoever, because they are providing the network to tell them that they can't block access to certain websites,

is a violation of their free speech rights. It's a very twisted thing. Because they don't have the right to censor, that means that their free speech rights are being restricted? Yes. And so, you should be careful here because, like, there is a sort of weird argument where that makes sense, but it doesn't really make sense here. And the only person who has ever sort of bought into that argument was a judge

on the DC circuit named Brett Kavanaugh, who is now on the Supreme Court. But we'll leave that aside. Here's the thing. You can believe that argument. I don't. I think it's wrong for a whole wide variety of reasons. But at the same time, Carr is 100% insistent that you can use Section 230, reinterpret Section 230 entirely. And again, as I said earlier, the authors of Section 230 have said this over and over again. It is designed to create incentives for people

Internet websites to moderate their content, to create whatever type of community that they want, including family friendly, including communities that are just for Republicans, communities that are just for Democrats, communities for people with eating disorder, whatever community you want, you have to be able to create your own rules and enforce them. And this is because they are a level above. They're not the Internet service provider. They're not your connection to the wider Internet community.

itself, and so therefore they have to be able-- Each website is different, each website should be able to set its own rules, and each website should be able to enforce its own rules without facing legal liability for it. That's the theory behind Section 230. Brendan Carr believes that he can reinterpret Section 230 to force websites to do no moderation at all of political content. And what counts as political is increasingly unclear. But this is-- If you think about these two things together,

that net neutrality is a violation of the First Amendment, but that you can enforce no moderation, effectively the same thing as net neutrality on service providers.

There's no way to align those two concepts. Like, the way I think about it is basically saying that you are saying that the roads, the highways, can discriminate and block certain people from traveling. But then you say a store on the road cannot kick anyone out of their store.

Right. You're saying like, you know, that the Comcast can say, oh, you can't go to YouTube, but YouTube can't tell you that you can't post a comment to YouTube. It makes no logical sense. You can't put those two things together. I can kind of see an argument where somebody says like.

You know, something like this could apply to both. Or there's a very clear and I think reasonable argument that neutrality should apply to the infrastructure layer, to the ISP, but not to the service provider above it.

because that's how it works, right? That's literally how it should work. But you can't do the flip where you say, like, the lower level can discriminate, but the upper level can't. It makes no sense. I mean, I think the just absurdity of it kind of highlights the broader issue that I think myself and many people have with Carr, which is that he's not intellectually honest or consistent. He is a very clear political actor. And the only way that these sorts of

actions in my mind make sense is if you look at them through a political lens, which is what is most politically expedient? What can I do to further my conservative agenda and essentially, you know, ensure that progressive content, democratic content is censored online and Republicans have free reign of the internet. Yes. And it's, it's, you know, and I almost hesitate to call it conservative agenda, right? Because it's a Trumpist agenda. Right. Right. It's, it's,

It's its own brain. It's like, yeah, it's Trumpism. And, you know, there's a really clear example of this, which was that in the last year or so, it may go back a little bit further. There were four different cases that were brought to the FCC about the renewal of broadcast licenses. These are for affiliates, so local TV or radio stations, right?

where people challenge the renewal. And the renewal is generally pretty pro forma. Like you have a license to your spectrum and, you know, every so often you have to renew it. And generally you send in your forms and the FCC stamps it and that's it. I don't even, I can't even think of a case where the renewal didn't go through. But there were four challenges during the last administration. One,

And one of them was by a bunch of progressive groups against a Fox affiliate in Pennsylvania somewhere. I forget exactly where. And they were arguing that based on the Dominion case, which we don't have to go into the details, but basically sued Fox for defamation and won a settlement of –

780 something million dollars, you know, just crazy amounts of money. And so they were arguing that because of that settlement and this affiliate had rebroadcast a lot of the content that was was found to be defamatory, that they had violated some of the terms of their spectrum agreement, their license agreement.

The three other ones of the four were brought by a very right-wing conservative group against different providers for different things. Each one was slightly different, but each one was effectively saying, "You platformed Democratic content that we didn't like." And so right at the end of the last administration,

The previous FCC commissioner, Jessica Rosenworcel, who was a Democrat, dismissed all four of those and wrote in the explanation very clearly, this would violate the First Amendment. Like, it's a speech issue. And like, doesn't matter which side of the aisle, there was, you know, one complaint from the left against the right and three complaints against the right against the left. Like, all of these, it's not our job. It's not our job to be judging on speech.

And therefore, you know, we're not doing anything. We're not taking up these requests to remove the licenses from these stations. We're going to let them go.

That happened like a week before the inauguration. The inauguration comes in, Carr gets appointed to be FCC chair. He doesn't have to go through Senate approval because he's already been approved as a commissioner, so they can just bump him up to the chair. And one of the very first things he does is reinstate three of those efforts, the three from the right-wing group against, you know, for platforming democratic speech effectively.

This was as clear a case as you can see of, you know, where the previous administration was very clear, like, we're not going to touch this. This is political. This is obviously trying to abuse our power to violate the First Amendment. We're not going to touch those things.

across the board. Doesn't matter which political side of the aisle this is on. Carr comes in, he ignores the one that was dismissed that was left-wing groups complaining about Fox, and immediately reinstates the other three and says, "We need to do more investigation of this." It's just all so transparent. It's infuriating. And he's doing all of this while ranting about free speech. And you see these people now that follow him, that support him, like this Fox News guy, I can't remember his name, who I was fighting with the other day.

you know, just talking, I think he was going after Ari Cohen too, saying, you know, you don't know anything about free speech. This is a great first amendment lawyer. One of like a top first amendment lawyer. One of the best. Yeah. But he sort of cultivated this fandom that I would say is very Elon-like, very much smaller, but that sort of believe that, yes, this is restoring free speech. And it's

terrifying to me as somebody that actually cares about free speech, and I'm sure to you too. What do you think? And obviously, like, you know, his powers are limited somewhat, you would think, you know, in terms of what the FCC actually has jurisdiction over. But what do you think that the internet and media landscape could look like in the next few years if Carr is continually allowed to kind of amass and exert the power that he's

been attempting to. I mean, it's weird too because literally less than a year ago, the whole sort of conservative movement and sort of the Federalist Society folks were super excited by a ruling in a case which is referred to as Loper-Bright, which was basically this question of

I feel bad. I go deep in the weeds on these things. I feel like I'm going on these tangents, but it's important to understand. No, this is helpful context. You've got to know the context. I feel like I'm explaining Twitter drama. That's how you feel when you're talking about tech policy because you're like, well, you've got to kind of understand these other things, but just give people

the 101 because I think it's important. So for many, many years, there was this concept called Chevron deference, which came from a case that involved the company Chevron. It doesn't matter what that case was about. What matters is the idea was that agencies within the executive branch, you know, effectively under the White House, if they were coming out with rules based on regulation, so Congress will pass a regulation. Part of that will often be to shift the authority to handle the

the issues around that regulation to some authority. It could be the FCC, it could be the FAA, it could be, you know, Health and Human Services, whoever it is, somebody is going to be in charge of enforcing it. And what the Chevron deference standard that the Supreme Court came out with in the 80s basically said, the agencies are experts in this. They're hiring people who are experts. They have civil servants who are experts. They've studied this.

Usually they've gone through like detailed comment periods and gotten all this stuff. If they come out with a rule, we shouldn't second guess the rule unless we determine that the rule was arbitrary and capricious. That's the standard. If they find that the rule was just sort of put in place willy nilly, arbitrary, capricious, then the courts will step in. But if it appears that the agency considered the rule carefully, got comments, discussed pros and cons, and then had a vote, we're not going to get in the way of that.

And that rule was originally put in place and conservatives celebrated it because they actually thought that was a good thing. And then they got mad because the government kept doing stuff that they didn't like and they couldn't sue to stop it. And so then it became this project to sort of get rid of Chevron deference. And so that finally happened last year in a case called Loper Bright where the Supreme Court said, no, Chevron deference makes no sense. The judge

judiciary can now review anything the executive branch does and we don't have to give deference to anything. So if the FCC goes and does stuff historically, the Supreme court would be like, well, the FCC considered it. Even if we don't agree, it's their job to do that. And then it happened. That's happened. There was a famous case about, you know, broadband services in the early two thousands and the Supreme court said, we can't touch it because deference, like the FCC did the work. We're not going to second guess it.

Now, last year, the Supreme Court said like, oh, yeah, like we can second guess everything, everything the executive branch does. And conservatives cheered that because that was when Biden was president. Right. They didn't want the government to be able to do anything. Now Trump is president and Carr is running the FCC. And so his authority is clearly way less than it even was before.

eight months ago before the Loper-Bright decision came down, if the Supreme Court will actually review stuff. Now, that's the whole other question. So he has very little authority. And again, like the FCC is not supposed to have any authority over the internet.

itself. And in fact, part of the arguments against net neutrality that Carr himself laid out was that the FCC should have no authority over regulating any part of the internet, which he now ignores because he wants to regulate speech on the internet. And so he doesn't

really have the authority to do any of this. He certainly doesn't have the authority to reinterpret Section 230, even though he's making moves for that. And I believe there was like something that was put out recently where they had started this process at the end of the first Trump administration to reinterpret, to say the FCC could reinterpret Section 230. The crazy thing is like the original draft of the law that became Section 230

literally had a line in it, which says like, the purpose of this is so that the FCC does not regulate the internet. It's just like, you have to laugh, I feel like. But with so many things with Trump, and I, you know, I totally hear you, right? Like he doesn't have this authority. He has less power than he had eight months ago. But look at someone like Elon Musk. It seems like a lot of people with no authority are still able to kind of exert power and

and cause chaos. Yes. And that's the fear, right? If nobody stops him, then yeah, then suddenly he does have the authority, even if it's not a legal authority. If nobody stops them from doing this stuff, then yeah, then they get away with it. And so that is the terror, right? And the fear is that he can use this, the powers that he believes he has or he's pretending he has,

to consistently attack media, any kind of media, social media, regular media that favors Democrats or even not even favors Democrats. That's not even fair, right? It just platforms them at all. Like interviews them, speaks to them, has like represents their, you know, viewpoints in any capacity. Exactly. Articles. And the end result of that is clearly a chilling effect, which is that

no one will platform these people, no one will present fairly. We're getting the opposite of the Fairness Doctrine in every way, which is like a pure unfairness doctrine, which is that only sort of MAGA Trumpist speech is allowed.

And that should be terrifying. And it's all happening under the guise of free speech. And he's using the language of free speech. And I would argue he's built himself this little influencer profile, especially on X, where he rants about free speech. And these idiots who don't know anything about free speech listen to him and amplify this. And I would say even the

has played a role in this, 'cause there's headlines that also refer to him as a free speech crusader. I mean, we've seen this before, right? It was the same thing with Elon Musk. Elon Musk presented himself as a free speech crusader, and everyone-- For years, the media would write that about him, and just sort of, like, take him as words. And this is like-- You know, this has become sort of a staple of the sort of Trumpist media ecosystem, in which they say the exact opposite of what they really believe,

And the media, especially, you know, it's not all media. Some are certainly much better than others, but definitely sort of the traditional political media seems to think that we have to take what they say and present that even if it's totally false. And, you know, the Trump and those in his orbit are completely exploiting that. So as long as we keep saying we're about free speech and we believe in free speech, we're pushing this for free speech.

Then like the, you know, a huge portion of the media will report it as true and reflect that. And then we can do whatever we want to suppress speech. And nobody will report on that because we're the free speech people. And because by then the media has been dismantled. Yeah.

And Carr himself, you know, so every once in a while he does things that sort of pretend to be, you know, actually about free speech. Like, he just did a talk in Europe somewhere. I'm not sure for what conference, for some conference, where he was, like, slamming Europe for the DSA. Yeah, the Digital Service Act, which, if you want to explain super quick. Yeah, which is, it is their sort of social media regulation. It's...

from a few years ago. And it has some elements of it, which I'm actually against. I actually think there's a lot of problems with the DSA and the way it's been implemented that could impact speech online. And I've criticized it from when it was being proposed. And like, there were all sorts of things they could have done to make it better and they didn't. So I actually do think the law is problematic. But Carr turns it into this like,

huge censorship bill that forces companies to censor content that the Europeans don't like, which is not true, right? There are problems with the law. There are things about it that I think can lead to censorship and

the way, you know, the way the EU has sort of presented it at times. You know, they've sort of threatened Elon Musk with it in a way that I thought was ridiculous and unfair and sort of went way beyond what we were promised the DSA would, you know, would be allowed to do. So there are concerns about it. And so he'll stand up to something like that, but then he'll never admit that he's doing much, much worse in terms of censorship at home. I just cannot drive home enough that this man does not care about

about free speech. Yes, not even one bit. The only way he cares about it is as a tool to sort of increase his own power or the power of sort of the Trump universe. So what can people like us and others that actually care about free speech and protecting, you know, our right to free expression do about this? Because this is a man who's

kind of an unelected person in government. Like, a lot of people don't work in journalism, right? They're not able to affect that much change. Like, what can people do? I mean, you know, the first thing is just being willing to recognize what's actually happening and to call it out. Like, when there are opportunities. Do not accept his framing as that he is a free speech supporter. Do not accept his framing that the things that he's doing are in defense of free speech or in support of free speech.

And recognizing and telling people and being clear about it that they're not. They're the opposite. That he is clearly, repeatedly trying to suppress speech, any kind of speech that is pro-democratic, and that that is a problem. There's so many different things going on right now, right? Like the question is, what do you do about all of it?

Kind of an impossible question probably to ask. But part of it, and the important part, is sticking to the truth, sticking to reality, right? Using what free speech we do have left to speak out and talk about this stuff. Because the first step to actually fighting back against this stuff is making sure that people understand reality. They are flooding the zone with absolute nonsense and lying constantly. It is pure propaganda. And part of that is to make people give up.

and to not know what's real, and because they don't know what's real, just give up caring about everything entirely, which just opens the field for them to do even worse stuff. The most important thing, at least, is to stay in touch with reality, to recognize what is being said, how it is being used, how it is being weaponized, and being able to speak that, and to say what Carr is doing is against the First Amendment, what he's doing is trying to suppress speech, no matter what he says,

You have to look at what he's actually doing. And the more you can actually understand what's actually going on, then people can get into the right frame of mind, the right position to actually push back on this stuff. I think it's also just so important that people value speech. I think one thing that's been so concerning to me as a journalist, and I talk about this all the time, is just how people on both sides of the aisle, but especially Democrats, liberals, leftists, are so concerned.

willing to advocate against free speech, right? I mean, I was very against the whole like panic over sort of quote unquote misinformation, like driven by the media that I thought was

it just can be so easily weaponized. And obviously, we want to call it, I mean, that's the goal of good journalism is to debunk misinformation. But I do think that overall, a lot of people on both sides of the political spectrum just want to censor the other side. Yeah. And, you know, people always get mad when you get into this thing. You're like, oh, don't both sides this, right? You know, like, clearly, clearly, what the Trump world is doing right now is worse. Like, they are dismantling the entire framework of the United States. Like, put that aside. The

The Democrats are not helping, though, right? Because you're right. They are presenting the same thing. They've pushed bills to, like, you know, force people to take down misinformation. COSA, there have been a whole bunch of these other ones, right? You know, Amy Klobuchar had a bill that would, this is my favorite one, would give the director of Health and Human Services, which is now Robert F. Kennedy Jr., the power to dictate to any website health misinformation that they had to remove. Oh, my God. Yeah.

Think about that now, right? With RFK Jr. in that position, if you could give him the power to point to any website and say, you have to remove this because this is health misinformation, that was an Amy Klobuchar bill, right? This is the point. Even if Democrats are pushing this thing because they say, well, this is misinformation, this is bad, or even some people are arguing like, this is why we're in this position today. Think about who you're giving power to.

Right. If you are giving the government power to say this is misinformation that you have to remove right now, that is Trump, that is RFK Jr., that is Brendan Carr, that is all these people who are showing that they want to censor. And some people will argue, well, they're going to do it anyways. And you can see what Brendan Carr is doing. You don't have to enable it. You don't have to give them the power to make that easier. And you don't have to give them the tools to make that because that makes it even harder to fight.

And so what the Democrats are doing where they talk about this stuff – and yes, you're right. Across the board, you have people on the far left who have been really, really into this idea of like, oh, yeah, we have to stand up and make misinformation illegal. It's like who defines what misinformation is? Who's going to have the power?

every time this has been done you can look at all different countries around the world you can see where this is being done every time that power the power to or even hate speech right this is a sensitive topic people say hate speech okay look at every hate speech law around the world and look how it's enforced it is always enforced by the powerful against the powerless against the marginalized groups they say you know like some marginalized group speaks out against the

the police or the government and they say well that's hate speech against us and we're going to punish you for it don't give them the tools don't give the powerful the tools to suppress the speech of the marginalized and the powerless and so it's it's so important to make this point and thank you for bringing it up this is not just like a democrat or republican thing because both of them are awful on this like if you believe in free speech don't give people the power to censor

No. And I just, I think we need to really just pressure, as you said, yes, Trump source. I feel like I have to say that disclaimer so people don't get all up in arms. Obviously, we just did this whole episode on it, so we agree. But I am just appalled by the Democratic Party and the way that they've, you know, enabled all of this and facilitated it and go out and boost, you know, crow about it. They brag about it. I mean, this is like Joe Biden bragging about the TikTok ban. You know, it's just,

It's absurd. Well, Mike, thank you so much for chatting with me today. I appreciate your time so much. Where can people continue to follow your work? All my big writings are on techdirt.com. And I spend all my social media time these days on Blue Sky, where I post way too much. I'm a fan of your posting.

All right. Well, thanks so much. Thanks. Thanks for having me. All right. That's it for this week's episode. You can watch full episodes of Power User on my YouTube channel at Taylor Lorenz. Don't forget to subscribe to my tech and online culture newsletter, usermag.co. That's usermag.co, where I cover all of these issues and more. If you like the show, give us a rating or review on Apple Podcasts, Spotify, or wherever you listen. We'll be back next week with a brand new episode of Power User.