In an August 24 post on Truth Social, Donald Trump called ABC and NBC News “two of the worst and most biased networks in history.” The president said he’d support the Federal Communications Commission (FCC) revoking their licenses “because they are so biased and untruthful, an actual threat to our Democracy!!!” Setting aside the question of whether ABC and NBC pose greater threats to “Democracy!!!” than Trump’s authoritarian proclivities, what’s notable is that he twice invoked “biased” in a single post to justify squelching the networks’ speech via license revocation.
CBS recently installed a “bias monitor” in its news division to help gain FCC approval of the merger between Paramount (CBS’s owner) and Skydance Media. FCC Chairman Brendan Carr proclaimed that the commission had secured commitments from Skydance to “adopt measures that can root out the bias that has undermined trust in the national news media. These commitments, if implemented, would enable CBS to operate in the public interest and focus on fair, unbiased, and fact-based coverage.” (emphasis added.) The FCC’s broadcast news distortion policy has given Carr a regulatory lever to pull in the administration’s war against media bias or, more frankly, against any content Trump dislikes.
It’s not just alleged bias in the broadcast news marketplace that perturbs the Trump administration; it’s also on social media platforms. Although never expressly invoking the word bias, Andrew Ferguson, chairman of the Federal Trade Commission (FTC), stated in April that the “greatest pitfall [of platforms] will forever be the temptation of social media companies to short-circuit [the] marketplace [of ideas] by censoring and limiting opinions with which they or others, all too often the democrat[ic] party, don’t agree.” (emphasis added.) Ferguson asserted that
if the social media space is highly concentrated, with incumbents facing little to no competition from rivals, it will be easier for platforms to engage in censorship—whether on their own initiative, in collusion with each other, or at the behest of left-wing public officials, regulators, advertisers, or other DNC interest groups.
Ferguson’s concern thus is with possible pro-liberal, anti-conservative bias on social media platforms. This fret animates the FTC’s February request for public information (RFI) regarding “Technology Platform Censorship.” The RFI sought information regarding “how consumers have been harmed . . . by technology platforms that limit users’ ability to share their ideas or affiliations freely and openly.” In announcing the RFI, Ferguson posted that it “marks an important step forward in restoring free speech and making sure Americans no longer suffer under the tyranny of Big Tech.”
Bias thus is a go-to claim—a justification—for the Trump administration when it leverages government power to intervene in (and manipulate) speech marketplaces run by private entities. The question is whether it’s wise to trust the government—whichever party is temporarily vested with power—to decide whether speech is biased and, in turn, to let the government try to eradicate bias through marketplace intervention.
As suggested above, Ferguson invokes the marketplace of ideas theory of free expression when addressing alleged problems with power concentration in the social media realm. He stated in April: “If market concentration negatively impacts our marketplace of ideas, it is because it limits rather than expands the free exchange of ideas among the citizenry.”
The marketplace of ideas theory was imported into First Amendment law by Justice Oliver Wendell Holmes, Jr. more than a century ago. It privileges “free trade in ideas,” pivoting on the belief “that the best test of truth is the power of the thought to get itself accepted in the competition of the market.” In short, the expression of all ideas—all opinions—should be allowed, no matter how wrong they seem, and free and open debate—competition—among them will let society determine which are wisest and true.
Letting the government manipulate speech marketplaces run by private businesses not only violates their First Amendment right of editorial control and autonomy, it also conflicts with the marketplace theory. The US Supreme Court wrote in 1978 that “a central tenet of the First Amendment [is] that the government must remain neutral in the marketplace of ideas.” Justice Elena Kagan recently explained for a bipartisan majority of the Court that
this Court has many times held, in many contexts, that it is no job for government to decide what counts as the right balance of private expression—to “un-bias” what it thinks biased, rather than to leave such judgments to speakers and their audiences.
Kagan added that “on the spectrum of dangers to free expression, there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana.” In sum, government eradication of purported bias by private actors such as ABC, CBS, NBC, and Meta is decidedly unconstitutional.
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