Last week, a group of Democratic senators sent a letter to Federal Communications Commission Chairman Ajit Pai asking him to review the fitness of a broadcaster to retain its broadcast licenses based on the content of its news programs. This request is antithetical to the First Amendment’s protection of a free press, and Pai is right to reject it.
The senators’ specific grievances are against Sinclair Broadcast Group, a company that owns and operates many television stations across the country. Sinclair has been the subject of controversy concerning its alleged conservative bias, as well as its dissemination of scripted content to anchors on its networks. Sinclair is also seeking to merge with Tribune Media Co., another large media company, thereby extending the reach of its content. These factors form the basis of Senate Democrats’ request that the FCC look at pushing Sinclair off the air for “news distortion.”
Technically, the FCC has the power to do just that. Existing law asserts that the FCC may control the content of the airwaves in order to ensure they are used in a way the commission deems to be in the “public interest.” FCC and judicial precedent generally require clear intent to stage the news or mislead the public before the commission can use its power to revoke a license for news distortion. This fact, however, has not dissuaded members on both sides of the aisle from launching partisan attacks on media companies.
Last October, President Donald Trump took to Twitter to make similar claims of political slant in the news, asserting that “Network news has become so partisan, distorted and fake that licenses must be challenged and, if appropriate, revoked. Not fair to public!” He also pondered, “With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License?”
Trump’s scolding of NBC was a clear attempt to limit the freedom of the press in response to content he disliked, and many Democrats correctly opposed his blatant attack on NBC stations’ First Amendment rights. They tweeted, wrote letters and formed coalitions, all demanding that the FCC not allow political influence over broadcast licensing.
Given this strong response, it is surprising to see these same senators jump at the chance to strip another broadcaster of its licenses because of its content.
For his part, Pai has responded consistently in both cases, making clear that his agency will not be in the business of policing political speech on television. He rejected Trump’s call for action in October on these grounds and last week declined the Senate Democrats’ request to pursue investigations against broadcasters.
The larger issue at play in this controversy is the FCC’s ability to assert control over television news content at all. The constitutional basis for the FCC’s regulation of political content has always been shaky. The agency is governed largely by precedent set by the Supreme Court in cases like Red Lion v. FCC, in which the Court reasoned that because airwaves are a scarce resource, government must control the content transmitted over them.
This rationale, however, has been refuted by economists and legal scholars alike. Every economic good is scarce, yet we do not think it necessary or constitutional for the government to restrict what one can write in a newspaper simply because paper and ink are not in infinite supply.
In a similar case, FCC v. Pacifica, the court justified censorship of profanity by alleging that broadcast media have a “uniquely pervasive presence in the lives of all Americans.” But, again, this rationale does not comport with a reality in which one can always change the channel, particularly in light of the growing prominence of non-broadcast media options such as cable, satellite radio and the internet.
Justices across the ideological spectrum have sharply criticized both of these precedents. Justice Clarence Thomas has written of the “incoherence” of both Red Lion and Pacifica, and gone on to say that even if they were justifiable in the past, “[D]ramatic technological advances have eviscerated the factual assumptions underlying those decisions.” Justice Ruth Bader Ginsburg has taken a similar view of Pacifica specifically, writing that it was “wrong when it issued” and adding that “time, technological advances, and the Commission’s untenable rulings … show why Pacifica bears reconsideration.”
There is broad recognition that much of the jurisprudence undergirding the FCC’s ability to control broadcast content is based on mistakes and ought to be reversed. One’s First Amendment rights should not depend on the discretion of the FCC chairman at the time.
In an era when politicians are only too eager to label anything they don’t like “fake news,” we should not want the federal government to actively police content in response. Freedom of the press applies to everyone, even – and especially – those with whom we disagree.
Joe Kane is a technology policy associate at the R Street Institute.
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