Vice President JD Vance’s wise words to Europe about U.S. commitments to free speech are on a collision course with some of what’s happening stateside. The Federal Communications Commission and the Federal Trade Commission are headed in the opposite direction of Vance’s prudent remarks.
On Feb. 11, Vance valiantly informed an artificial intelligence summit in Paris that “American AI will not be co-opted into a tool for authoritarian censorship.” A few days later he told an audience in Munich, “In Britain and across Europe, free speech, I fear, is in retreat.”
His scolding is well deserved. The U.K. recently fined a man for praying silently, while not obstructing anyone, near an abortion clinic. Last month, a CBS News “60 Minutes” segment highlighted Germany’s speech policing by interviewing prosecutors involved in predawn raids of homes and electronics sparked by people’s online comments critical of politicians. FIRE, the Foundation for Individual Rights and Expression, has collected other egregious examples from around the continent.
Thankfully, the 1st Amendment protects Americans from such violations of their free speech rights. That’s why recent actions by the trade commission and the communications commission are so odd.
On Feb. 20, the FTC launched a public inquiry “to better understand how technology platforms deny or degrade users’ access to services based on the content of their speech or affiliations, and how this conduct may have violated the law.” But because those tech platforms, including Facebook, YouTube and X, are all private companies, the 1st Amendment, which protects citizens from government censorship, as observed in Europe, is not implicated. Just the opposite: The FTC’s implied crackdown on speech decisions of private tech companies is itself the threat to free speech.
By way of a real-world example, just as you should not expect the 1st Amendment to apply to your speech while you’re visiting Disneyland, don’t expect it on a social media platform either. Platforms can feel like and are often referred to as the town square, but just like Disneyland’s Main Street, U.S.A, they are not actually a public place. They are, in fact, private property owned by entities with free speech rights of their own and a vested interest in curating behavior to create a specific environment.
Tech platforms are within their rights to remove content they do not wish to carry, just as Disney can remove you from its parks if you’re waving a political banner or holding forth on a soapbox or otherwise “speaking” in a way that violates its rules. You may not like the outcome, but the legality of these expulsions is not in serious question.
The same situation of private activity as opposed to government infringement of constitutionally protected speech is being ignored across town at the FCC too.
Before being elevated by President Trump to chairman, FCC Commissioner Brendan Carr sent a letter in November to Alphabet, Apple, Meta and Microsoft accusing them of participating in a “cartel of censorship” by contracting with content moderation consulting company NewsGuard.
Likewise, the FCC’s foray into newsrooms defies the 1st Amendment. The agency is investigating KCBS All News radio in San Francisco for its coverage of Immigrations and Customs Enforcement activities, which is protected by the 1st Amendment. It has also restarted a previously closed investigation of CBS News’ editing of a preelection interview with Kamala Harris. That action was followed by Trump calling for CBS to “lose its license.” The agency has also opened an investigation into NBCUniversal and its parent company, Comcast, private corporations, over their DEI practices.
Even before the 2024 presidential election, Carr announced on cable news that the agency would look into whether a cameo appearance by Harris on NBC’s “Saturday Night Live” had violated the “equal time rule,” indicating license revocation was an option. As it turns out, the Trump campaign was given equal time by the network, but the most important question is why the anachronistic rule still exists at all.
This political moment provides an opportunity to get rid of outdated legacy regulations that can be used to favor or disfavor either party.
If an equal time rule for broadcasters ever made sense, it was on the basis of scarcity of news outlets. But today’s information and entertainment landscape is filled with cable news, social media, websites, satellite radio and many other media beyond licensed broadcasters. Why not get the FCC, whether led by Republicans or Democrats, out of the speech policing business altogether?
The United States should take its own advice and reduce executive agencies’ meddling in speech issues online and over the airwaves.
Jessica Melugin is the director of the Center for Technology and Innovation at the Competitive Enterprise Institute.
