Is It True That Content Moderation by Social Media Companies Violates the First Amendment? Free Speech At Risk
Content Moderation and Misinformation
Do social media and big tech companies seeking to moderate content and stop misinformation violate the First Amendment? Isn’t that censorship?
The short answer is no to both questions.
Fact checking, content moderation, and reliability rating by social media apps like Facebook or X do not infringe the First Amendment right to free speech of those who provided the content. In fact, the Supreme Court has ruled that content moderation falls under social media companies’ and other interactive content providers’ First Amendment rights.
However, the incoming Trump administration does not agree, at least when it comes to content moderation of Conservative viewpoints. It appears that the new Trump administration will seek to stop content moderation by social media companies of Conservative and right-wing viewpoints and misinformation, and to curtail research about misinformation.
A Censorship Cartel or Permitted Misinformation Content Moderation?
The nominee to head the Federal Communications Commission (FCC) in the second Trump administration, Brendan Carr, has vowed to “dismantle the censorship cartel”.
That sounds good and just, but is it?
And what the heck is a censorship cartel? Does it really exist?
Nope. First, it is a legal impossibility for social media companies to commit censorship.
Nonetheless, Trump and Carr contend that, excluding X (formerly Twitter), social media and big tech companies who operate as interactive content providers have colluded to silence Conservative voices by censoring them. They seek to hold the companies accountable for content moderation of right-wing talking points, misinformation, and debunked theories.
What Is Content Moderation?
As always, we need to define our terms before we embark on analysis or start throwing around loaded words.
The definition of content moderation is:
Content moderation is the process of reviewing and monitoring user-generated content on online platforms to ensure that it meets certain standards and guidelines. This includes removing inappropriate or offensive content and enforcing community guidelines and terms of service.
In other words, when a user submits content to a website, that content will undergo a screening process (known as the moderation process) to ensure that the content upholds the website’s regulations and is not illegal, inappropriate, harassing, etc.
Since their inception, social media companies and interactive content companies have attempted to moderate content and to set up guidelines for content. The law (Section 230 (C)(2)(a) of the Communications Act) specifically allows them to do so.
Social media companies have First Amendment rights according to the Supreme Court.
First Amendment and Content Moderation
Indeed, the First Amendment does not limit social media companies’ and interactive content companies’ ability to moderate offensive or misleading content. The First Amendment governs free speech in the United States.
It provides that:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Content moderation and interactive content companies are not government actors. For this reason, the Supreme Court has held that these companies have First Amendment rights which enable them to moderate the content that appears on their platforms.
Censorship? No, That’s Not Correct Either
The term censorship in the United States has a distinct meaning in the context of the First Amendment, and generally implicates government actions. The definition of censorship is:
Censorship is the suppression of ideas and information that some individuals, groups, or government officials find objectionable or dangerous. Would-be censors try to use the power of the state to impose their view of what is truthful and appropriate, or offensive and objectionable, on everyone else.
Thus, technically and legally, the phrase “censorship” relates to government entities and actions in the United States rather than to interactive content or content moderation companies who set content moderation guidelines.
Therefore, the bald accusations of a censorship cartel attacking the First Amendment rights of those who wish to spread or read false information get the facts and law exactly backwards. It does sound nefarious though and has a nice alliteration, making for a catchy phrase.
Standards or Censorship, Misinformation Fear or Political Bias?
Despite the established law, precedent, and misuse of the term censorship cartel, the efforts of Trump and his supporters to stop misinformation research and content moderation have increased. After his nomination, Carr sent a letter to Google, Meta, Microsoft, and Apple, stating that:
“Big Tech companies silenced Americans for doing nothing more than exercising their First Amendment rights.”
In the letter, Carr targeted “NewsGuard”, a company which provides fact checking and evaluates news claims for reliability for a number of interactive content providers such as Facebook. Carr claimed that NewsGuard gave low reliability ratings to Conservative content because it wanted to silence Conservative points of view.
NewsGuard denied these allegations, stating that it provides fact checks and ratings to companies including Facebook, Google, Microsoft, and Apple based on “apolitical criteria of journalistic standards”. NewsGuard claimed Carr had relied on unreliable sources in making his determination:
“Instead of censorship, we provide users with more information – reliability ratings of news publishers based on apolitical criteria and a transparent journalistic process – so that each user can make informed decisions about which information to trust.”
Background Information About Carr and Elon Musk
Carr wrote the Project 2025 section on the FCC. He’s also closely allied with Elon Musk, the owner of X and Starlink, a satellite company that stands to benefit from Carr’s/Project 2025/FCC recommendations.
Musk will co-lead DOGE (Department of Government Efficiency), an entity which will offer reforms and suggestions for government spending and for running the government under Trump II.
Musk owns many companies who will be affected by government spending and policies, including those of the FCC. Previously, these conflicts of interest would preclude him from taking on the role at DOGE without divesting his business interests.
In stating his intentions as Chairman, Carr said on X:
"We must dismantle the censorship cartel and restore free speech rights for everyday Americans . . . Facebook, Google, Apple, Microsoft & others have played central roles in the censorship cartel" . . . [and] "must be dismantled."
Notably, Carr omitted X from his list of “big tech” and social media companies practicing censorship. He accuses the other companies of colluding in bad faith to drive out Republican views, which he calls “diversity of opinion”. In his letter, he makes no mention of X, Starlink, or Musk. But he has said that he favors satellite broadband access which Starlink provides.
But Is The Content False or Misinformation?
So far, Carr and other Republicans claiming censorship have not addressed the issue of whether the moderated content is false or contains misinformation. Rather they focus only on the fact that a right-wing viewpoint may have been moderated and call that “censorship” of “diversity of opinion”.
But when X or other companies moderate, dampen, or silence liberal or left views, they apparently see no censorship or bad faith. Thus, accusations of censorship and improper motive seem to lie in the eye of the beholder (Carr) and whether the information comes from the Right or Left.
But there are larger issues to consider besides political leaning. Although not among Carr’s stated concerns, it’s well settled that misinformation, fake news, bias, and conspiracy theories are dangerous and can cause the public to believe and rely on falsehoods, and cause violence and even overthrow of a government.
This belief is so powerful that the Federation of European Journalists, and other foreign newspapers, have decided not to participate in X after January 20, 2025. The Federation explained that it can’t ethically participate in a forum whose “owner has transformed into a machine of disinformation and propaganda”:
‘After the US elections, EFJ pointed out the threat to democracy and freedom of expression posed by the cooperation between the president of the most powerful country in the world, Donald J. Trump, and the richest man in the world, Elon Musk, who is also the owner of social network X and has been appointed to lead a “Department of Government Efficiency” (DOGE) when Donald J. Trump takes office as president on January 20, 2025.
‘We cannot continue to participate in the social network feed of a man who proclaims the death of the media and therefore of journalists”, said the president of EFJ, Maja Sever.
‘The social media site X has become the preferred vector for conspiracy theories, racism, far-right ideas and misogynistic rhetoric. X is a platform that no longer serves the public interest at all, but the special ideological and financial interests of its owner and his political allies”.
Why is X not named for its treatment of liberal points of view?
One of These Things Is Not Like the Other
From his comments, Project 2025, and letters to these companies dated November 24, 2025, it’s clear that Carr is accusing Facebook, Google, Apple, and Microsoft of working together to censor the American public. Carr alleges that these companies, along with the Biden administration, sought to silence citizens by giving low ratings to the trustworthiness of right-wing apps and media outlets.
Note that the argument presupposes the motive of the companies and doesn’t focus on misinformation or the actual quality of the content or outlets. Low reliability ratings, the theory goes, intentionally prevented the Conservative point of view from being aired and well received, based on an improper motive.
In contrast, journalists from other countries believe X, which Carr has no problem with, has done far worse and threatens journalism and free speech around the world.
Carr accuses the companies of bad faith in making their rankings and listings. Carr’s interpretation does not allow for a genuine service or need of informing the public about dangerous misinformation or low reliability of prejudicial stories and conspiracy theories. In fact, it doesn’t address the dangers of misinformation at all.
Preferential Treatment For Rightwing Moderation
In contrast, Carr does not name or call out X for censorship. But X prioritized Conservative points of view. And Elon Musk’s AI app Grok has identified Musk as one of the “most significant spreaders of misinformation on X”.
Clearly, many factors are involved in the issue of content moderation that a bald assertion of censorship and bad faith of companies moderating right wing content doesn’t contemplate.
Section 230, Current Law, and Project 2025
Current law provides a clear answer to whether these companies, including X, violate First Amendment rights to free speech of those whose content has been moderated. But Carr, Trump, and many Conservatives don’t like the way the courts, including the Conservative Super-Majority Supreme Court, have interpreted Section 230 and the First Amendment.
The Project 2025 chapter authored by Carr suggests that the FCC should:
[e]liminate immunities that courts added to Section 230. The FCC should issue an order that interprets Section 230 in a way that eliminates the expansive, non-textual immunities that courts have read into the statute.
It’s unclear whether this would be permissible rulemaking and certainly flies in the face of recent Supreme Court cases granting authority to courts rather than federal agencies in making policy determinations. Nonetheless, it appears that Trump II will (selectively) seek to prevent those who provide fact-checking and reliability ratings for Conservative and right-wing talking points by attempting to issue a regulation through the FCC superseding the federally enacted statute Section 230 and legal precedent, including of the Supreme Court.
Competing Views on Misinformation and Content Moderation
Democrats take a different view than Carr of the longstanding Republican attempt to stifle content moderation of Republican talking points. Indeed, these attempts succeeded so well that social media companies stopped trying to moderate content and prevent election misinformation from reaching the public during the 2024 election. Democratic congressman Frank Pallone stated:
“What Republicans are trying to do here today [at a hearing on similar issues] is to force private companies to carry content that is misinformation or disinformation, dangerous, or harmful.”
What are we really talking about here? There are two conflicting strains at work:
The First Amendment prevents interactive content providers from providing fact checking and context, even when material is fake news disseminated by a foreign country who aims to hurt us. [REPUBLICAN argument]
Social media companies and interactive content companies have the possibility to do great harm by spreading misinformation and lies; these companies can mitigate the damage by providing context and labels or banning those who provide misinformation. [DEMOCRATIC argument]
Efforts to Stop Efforts At Reducing Misinformation
Perhaps the above characterization of a rightwing attempt to stop fact checking and content moderation seems a bit too reactionary, and too liberal biased. But Trump and his Republican supporters have been quite open as well as successful in their campaign against misinformation research, long seeking to shut down research about misinformation and its effects, and to attack fact checkers.
Their approach leads to a few questions:
Wouldn’t anti-misinformation research and combating misinformation be considered a good thing for society?
Indeed, most people think social media companies and the government should combat misinformation, according to a recent Pew Research study.
Wouldn’t anti-misinformation efforts be a protective measure for a country under siege by foreign nations seeking to use misinformation, disinformation, and fake news to weaken and destroy us?
Indeed, most people think so, according to a recent Pew Research study.
But Trump and his supporters do not.
Those not up to speed on these issues might well ask:
What kind of a government or leader would seek to shut down those who seek the truth or to correct falsehoods?
Why would somebody want to do that? What type of government wouldn’t want to protect the public from being willfully misled by disinformation spread by our enemies?
After all, the alternative is to welcome lies, slant, and fake news which can trick the public into false beliefs, some of which are intended to destroy our country and system of government. People can die if they believe misinformation about healthcare.
Remember that President-Elect Trump and his VP J.D. Vance objected to fact checking during debates and interviews.
Most Americans though think moderators should fact-check candidates in real time in debates, according to a recent Boston University Study.
Again, we have to ask: why would someone object to fact checks and curbs on misinformation?
Free Speech May Not Be Guaranteed
Whatever the answers to these questions, it appears that the United States will soon have a government hostile to misinformation research, fact checks, and reliability ratings. How successful Brendan Carr is in his attempts to change the law may well determine whether there is free speech in the United States. We can only hope Europeans and others who see conflicts, trouble, and lack of freedom of speech ahead for Americans are wrong.
