Incoming FCC Chairman Brendan Carr's Beef With NewsGuard Is Legally Dubious and Empirically Shaky

The company, which says it takes an "apolitical approach" to rating news outlets, faces regulatory threats and a congressional probe because of its perceived bias against conservatives.

Brendan Carr, President-elect Donald Trump's pick to chair the Federal Communications Commission (FCC), wants to "dismantle" what he calls "the censorship cartel." As Carr defines it, that cartel includes not just Big Tech companies such as Meta, Apple, Microsoft, and Alphabet (which owns Google) but also NewsGuard, a company that rates the credibility and transparency of news and information sources. Carr says NewsGuard has conspired with other businesses to "violate Americans' constitutional freedoms" by silencing "news outlets and organizations that dared to deviate from an approved narrative."

Carr's complaint is puzzling for several reasons. First, his claim that NewsGuard is violating "Americans' constitutional freedoms" is legally nonsensical, since the First Amendment constrains government action, not the decisions of private businesses. Second, the First Amendment protects NewsGuard's commercial activities, which include researching news outlets, evaluating them, offering guidance to advertisers, and selling filters based on its credibility assessments. Third, Carr's implicit charge that NewsGuard is biased against conservatives, which echoes complaints from Republican members of Congress and organizations such as the Media Research Center (MRC), does not seem to have a firm empirical basis.

How Could NewsGuard Violate the First Amendment?

NewsGuard was founded in 2018 by former Wall Street Journal publisher L. Gordon Crovitz and Steven Brill, founder of The American Lawyer and Court TV. "NewsGuard is a private organization that conducts fact-checking and provides credibility ratings for news and information outlets," notes Ari Cohen, lead counsel for tech policy at the Foundational for Individual Rights and Expression. "These ratings can be seen by users utilizing a browser plugin to help them assess news sources, and can be licensed by online services for various purposes including assisting in content moderation decisions."

Contrary to what Carr claims, a private organization cannot violate the First Amendment. As Cohen notes, Carr himself has previously acknowledged that point. "Whether it's the government shutting down speech (a 1A issue) or a private platform doing it (not 1A), these decisions aren't made by an oracle of truth," he wrote on Twitter (now X) in 2020. "It's always a person in power (merely fallible or with a political agenda) that censors speech."

It is certainly true that fact-checkers and news media analysts are fallible and may be biased, and there is no shortage of complaints about specific calls that NewsGuard has made. But the crucial difference between a business like NewsGuard and the government is that only the latter has the power to coerce compliance. People are free to evaluate NewsGuard's judgments, accept or reject them, and act accordingly. Like the news outlets it evaluates, NewsGuard is subject to competition and to criticism that may dissuade potential customers.

None of this is true of the government, which has a legal monopoly on the use of force to impose its will. If legislators or regulators restrict what people can say and see online, websites cannot ignore those edicts without risking civil or criminal penalties. That difference is reflected in the wording of the First Amendment, which says "Congress shall make no law…abridging the freedom of speech." Courts have extended that injunction to other federal agencies and, via the 14th Amendment, to state and local governments. But as Carr conceded in 2020, private decisions about which speech to host, even when they strike some people as arbitrary, unfair, or politically biased, are not "a 1A issue." The same goes for the private advice that informs those decisions.

In fact, those decisions and advice are forms of speech protected by the First Amendment, as the Supreme Court recognized this year in Moody v. NetChoice. "The Constitution protects the expression of groups like NewsGuard, which simply provide opinions on the credibility of content and information sources that other services may choose to adopt or ignore at their discretion," Cohen notes. Or as Crovitz put it in a written response to Carr's charges against NewsGuard, "our journalism is itself speech protected by the First Amendment."

Crovitz added that "we're concerned to see a government official using the powers of his office…to attempt to prevent a private company (NewsGuard) from producing journalistic content."Cohen shares Crovitz's concern. "Carr's message is unambiguous," he writes. "NewsGuard's expression and viewpoints are disfavored, and both NewsGuard and any expressive platform caught utilizing or adopting it are at risk of FCC retaliation. It's difficult to imagine a more clear-cut attack on First Amendment rights than that."

All of this would be true even if, as NewsGuard's critics claim, the company were systematically biased against conservative voices. But there is little evidence to support that claim.

'A Tool to Censor Conservative Speech'

"We wonder if NewsGuard [is] used as a tool to censor conservative speech," Rep. James Comer (R–Ky.), chairman of the House Committee on Oversight and Accountability, said last June after revealing that his committee was investigating the company's practices. In a June 13 letter to Brill and Crovitz, Comer said he was especially concerned about political opinions expressed by some NewsGuard employees, a Defense Department contract with the company (which NewsGuard has described as both a "grant" and a "licensing fee"), "NewsGuard's business relationships and other influences on its ratings process," and "frustrations about interactions with NewsGuard representatives over exchanges" that news outlets "perceive as aiming to suppress information that may challenge widely held views but is not itself inaccurate."

The committee "does not take issue with a business entity providing other businesses and customers with data-based analysis to protect their brands," Comer wrote. "Rather, we are concerned with the potential involvement of government entities in interfering with free expression." But he added that "truthfulness and transparency about the purpose and origin of inquiries and managing conflicts of interest that may impact the public good are also relevant," which suggests that Comer thinks his job as a member of Congress includes second-guessing NewsGuard's business practices, irrespective of any purported government influence. His speculation that NewsGuard may be "a tool to censor conservative speech" likewise reflects an agenda that goes beyond legitimate concerns about government involvement in shaping online speech.

Carr, for his part, describes NewsGuard's name as "Orwellian." Under the guise of checking facts and assessing the credibility of news outlets, he averred in a November 13 letter to the CEOs of Meta, Alphabet, Apple, and Microsoft, NewsGuard "operates as part of the broader censorship cartel" by steering advertisers away from disfavored sites. To support that claim, Carr cited a November 2024 Newsmax story about Comer's probe, headlined "Rep. Comer to Newsmax: NewsGuard's Methods Must Be Probed," that quoted the congressman's concern about anticonservative bias.

The Newsmax story also quoted Newsmax host Rob Schmitt. "Their goal is obviously to bully conservative media out of existence," he said. "They want to have just one dialog in this country. They want to have left-wing authoritarianism."

Carr also cited a December 2023 MRC report that supposedly documented NewsGuard's "leftist bias." The report described the results of an analysis that looked at a sample of news sources rated by NewsGuard. MRC divided the sources into "left-leaning" and "right-leaning" categories based on assessments of "media bias" by AllSides. The average NewsGuard rating for "left-leaning" outlets was 91, the MRC reported, compared to 65 for "right-leaning" outlets. "NewsGuard is just another leftist group trying to censor conservatives," MRC President Brent Bozell said. "We have the proof."

Unsurpisingly, Crovitz disagrees. "NewsGuard's ratings are based on nine apolitical journalistic criteria using a transparent process with multiple layers of review and fact-checking," he says in an email. The "credibility" criteria include "does not repeatedly publish false or egregiously misleading content," "gathers and presents information responsibly," "has effective practices for correcting errors," "handles the difference between news and opinion responsibly," and "avoids deceptive headlines." The "transparency" criteria include "discloses ownership and financing," "clearly labels advertising," "reveals who's in charge, including possible conflicts of interest," and "provides the names of content creators, along with either contact or biographical information."

If NewsGuard is applying those criteria fairly and consistently, how does Crovitz explain the MRC's results? He says the MRC's sample consisted of just 55 outlets, a tiny percentage of the "10,855 news and information websites from all corners of the political spectrum" that NewsGuard has rated, and that sample was not random.

The MRC "chose specific outlets to analyze, choosing more credible left-leaning outlets and less credible right-leaning outlets to create a false conclusion," Crovitz says. "Many prominent conservative and libertarian outlets with high scores were not included in MRC's study, skewing the results. Heritage.org (100/100 NewsGuard score), The Wall Street Journal (100/100), Reason (100/100 NewsGuard score), CATO (92.5/100 score), Washington Free Beacon (87.5/100), and MRC's NewsBusters site itself (92.5/100 score), were excluded, among numerous others. Similarly, left-leaning sites with low NewsGuard scores—such a DailyKos.com (45/100 score)—were excluded."

The MRC's methodology limited its analysis to sites rated by AllSides. But Crovitz notes that "AllSides has rated more than 800 news and information sources," which he says means "MRC's sample of 55 sites was also an incredibly small sample even of AllSides' data."

'Our Apolitical Approach'

Although the MRC's own site got a high rating from NewsGuard, the same cannot be said of Newsmax. Carr "relied on false claims about NewsGuard from sites like Newsmax that get low reliability scores from us," Crovitz says. "We find it ironic that sites like Newsmax report falsely about us, misleading government officials into threatening us, then call us censors, even though we're First Amendment absolutists."

In his written response to Carr's letter, Crovitz suggested a course of self-improvement for Newsmax. "There is an alternative to Newsmax misleading government officials in an effort to block independent ratings of Newsmax's editorial practices," he wrote. "Newsmax could instead join the thousands of other news websites that earned higher trust scores from NewsGuard by improving its basic journalistic practices. Indeed, our Newsmax Nutrition Label explaining our criteria and how we applied them provides a roadmap for Newsmax to improve its practices and join the many conservative-oriented and liberal-oriented sites that have increased their NewsGuard ratings by improving their credibility and transparency practices."

Newsmax, a leading promoter of Trump's baseless claims that systematic election fraud deprived him of his rightful victory in 2020, may have trouble earning a higher NewsGuard rating. In September, it settled a defamation lawsuit by Smartmatic, one of the companies implicated in Trump's stolen-election fantasy, for an undisclosed sum. Newsmax still faces a defamation lawsuit by Dominion Voting Systems, which likewise figured in that fantasy.

While it might be true that Newsmax's criticism of NewsGuard is motivated by sour grapes, that explanation does not apply to the MRC's complaints, although Crovitz argues that they are based on a skewed reading of the data. Still, the high rating for the MRC's NewsBusters site seems inconsistent with the organization's thesis, and other conservative outlets with high NewsGuard ratings have cited them as a badge of honor.

"Among NewsGuard's verified and trusted news sources is The Daily Signal, which has received a 'green' rating on all eight relevant criteria, and is described as a news outlet that 'generally maintains basic standards of accuracy and accountability,'" the Heritage Foundation organ bragged in 2019. The author of that piece, Daily Signal editor Pete Parisi, was enthusiastic about the company's potential for warning people about "fake news."

Such examples, Crovitz argues, show that NewsGuard is not hostile to conservative outlets. "As a result of our apolitical approach, there are more conservative and libertarian sites with overall 'credible' ratings in NewsGuard's database than liberal sites," he says. "This includes many of the most prominent conservative and libertarian media outlets."

Those outlets, Crovitz says, include Fox News, the New York Post, RedState, Townhall, The Western Journal, The New York Sun, Reason, The Daily Caller, The Washington Times, the Washington Examiner, The Dispatch, National Review, The Free Beacon, The Post Millennial, the Cato Institute, Hot Air, Commentary, the Heritage Foundation, and The Daily Signal, along with "numerous other conservative and libertarian brands." He notes that "The Wall Street Journal (100/100) outscores The New York Times (87.5/100), The Washington Examiner (92.5/100) outscores The Daily Beast (87.5 /100), The National Review (92.5/100) outscores Mother Jones (69.5/100), Fox News (69.5/100) outscores MSNBC (49.5/100), and The Daily Caller (82/100) outscores The Daily Kos (45/100) and CNN (80/100)."

'The FCC Does Not Have the Authority'

Crovitz obviously has an ax to grind, and his counterexamples do not amount to a systematic refutation. And given Reason's perfect NewsGuard rating, you might be skeptical of my take. But it seems clear that the company is not automatically giving news outlets low or high ratings based on their ideological orientations. That does not mean none of the complaints about NewsGuard's practices or judgment calls are valid. But it does suggest that critics like Carr, Comer, and Bozell are, at the very least, exaggerating their case and overlooking contrary evidence.

In any case, when it comes to FCC action or congressional investigations, none of this should matter. As Cohen notes, "the FCC's authority is generally limited to the mechanisms of transmitting communications. Only in extremely limited circumstances does the FCC have jurisdiction over content―none of which apply online. Put simply: The FCC does not have authority whenever it decides it would like to 'promote free speech' over one method of communication or another." And although Comer cites NewsGuard's receipt of Defense Department money as a justification for his committee's jurisdiction, he clearly intends to range far beyond any such government nexus.

Whatever you make of the case against NewsGuard, its research and speech are no less protected by the First Amendment than the dissenting voices that Carr claims have unfairly suffered as a result of the company's ratings. The government has no business trying to suppress either.