Free Speech

FCC Rejects Petition to Censor Broadcasts of President Trump's Coronavirus Press Conferences (and Other Speech)

"The Commission does not ... act as a self-appointed, free-roving arbiter of truth in journalism. plus an interesting discussion of the FCC's hoax rules.

|The Volokh Conspiracy |

From a letter released yesterday by the General Counsel of the FCC:

Free Press has filed … an emergency petition requesting an investigation into broadcasters that have aired the President of the United States' statements and press conferences regarding the novel coronavirus (COVID-19) and related commentary by other on-air personalities. The Petition claims that the President and various commentators have made false statements regarding COVID-19, which Commission licensees have broadcast to the public, and which allegedly have caused or will cause substantial public harm. Free Press asks the Commission, under its section 309 public interest authority and its rules prohibiting broadcast hoaxes, to investigate these broadcasts and adopt emergency enforcement guidance "recommending that broadcasters prominently disclose when information they air is false or scientifically suspect."

We deny Free Press's petition. For the reasons explained below, the Petition misconstrues the Commission's rules and seeks remedies that would dangerously curtail the freedom of the press embodied in the First Amendment.

Free Press, an organization purportedly dedicated to empowering diverse journalistic voices, demands the Commission impose significant burdens on broadcasters that are attempting to cover a rapidly evolving international pandemic in real time and punish those that, in its view, have been insufficiently critical of statements made by the President and others. At best, the Petition rests on a fundamental misunderstanding of the Commission's limited role in regulating broadcast journalism. And at worst, the Petition is a brazen attempt to pressure broadcasters to squelch their coverage of a President that Free Press dislikes and silence other commentators with whom Free Press disagrees.

Free Press asserts that the Commission "has a duty to rein in broadcasters that seed confusion with lies and disinformation." But the Commission does not—and cannot and will not—act as a self-appointed, free-roving arbiter of truth in journalism.

Even assuming for the sake of argument that Free Press's assertions regarding any lack of veracity were true, false speech enjoys some First Amendment protection, and section 326 of the Communications Act, reflecting First Amendment values, prohibits the Commission from interfering with freedom of the press or censoring broadcast communications. Accordingly, the Commission has recognized that "[b]roadcasters—not the FCC or any other government agency—are responsible for selecting the material they air" and that "our role in overseeing program content is very limited."

That is not to say that the Commission plays no role in regulating the use of public airwaves to disseminate information. For example, the Commission has historically regulated the broadcast of dangerous hoaxes. But the Commission has applied this rule narrowly in light of the substantial First Amendment concerns involved with the federal government policing the content of broadcast news. Specifically, the broadcast by a station of false information amounts to a violation only if: (1) the station licensee knew that the information was false; (2) it was foreseeable that broadcast of the information would cause substantial public harm; and (3) the broadcast did, in fact, directly cause substantial public harm.

Indeed, a review of the hoaxes that spurred the adoption of the rule underscores the narrow circumstances in which the rule applies, including a radio announcer knowingly stating falsely on air that the United States was under nuclear attack two weeks after the start of the Persian Gulf War; a radio show host knowingly broadcasting a friend's fake confession of a murder, leading to a costly police investigation; and a radio announcer knowingly announcing falsely that another radio host had been "shot in the head," causing police officers to rush to the scene.

Notwithstanding the narrow scope of the broadcast hoax rule, Free Press pushes the Commission to expand its construction of the rule in order to enable government-led flyspecking of broadcasters' editorial judgments—in this case (though the novel construction urged could apply far more broadly), their decisions to air statements by the President and others regarding COVID-19—and to issue prospective enforcement guidance discouraging such coverage absent disclaimers about their accuracy. We decline this invitation both because the broadcast hoax rule does not support such a reading and because the relief requested raises significant First Amendment concerns.

With respect to the rule, a broadcaster's decision to broadcast and comment on statements made by the President, relating to one of the most severe public health crises in a century, does not amount to airing an intentional or knowing falsehood. On this point, we agree with Free Press—context is key. At this moment, broadcasters face the challenge of covering a rapidly-evolving, national, and international health crisis, in which new information—much of it medical or technical in nature and therefore difficult to corroborate or refute in real time—is continually revealed, vetted, and verified or dismissed. In addition, we note that the President and members of the White House Coronavirus Task Force, including public-health professionals, have held daily press conferences in which they exhaustively answer critical questions from the press. Under such circumstances, it is implausible, if not absurd, to suggest that broadcasters knowingly deceived the public by airing these press conferences or other statements by the President about COVID-19. Moreover, there is a strong argument that broadcasters are serving the public interest when they air live coverage of important news events, such as briefings by the President, the White House Coronavirus Task Force, and state governors, during this national emergency.

Tellingly, the single concrete example provided by Free Press of alleged substantial public harm from broadcasters airing the President's remarks highlights the weakness of its argument. The President has expressed optimism that a combination of hydroxychloroquine and azithromycin, taken together, could be effective in treating patients with COVID-19. This optimism has been shared by New York Governor Andrew Cuomo, the Food and Drug Administration, and a number of medical professionals. But Free Press draws a connection between those widely-held sentiments and the alleged decision of a husband and wife in Arizona to ingest fish tank cleaner, which resulted in the death of the man and the hospitalization of the woman. Without the context (ironically) that a full investigation by Arizona authorities might supply, it blames this incident on the President's remarks and those broadcasters airing them. To say the least, even assuming the truth of this story,21 this is not the kind of foreseeable harm contemplated by our rules. While these events are tragic, the Presidential statements in question addressed the potential federal approval and administration of hydroxychloroquine and azithromycin by medical professionals. Under the circumstances, it was not reasonably foreseeable that a broadcaster's decision to air this statement would result in viewers or listeners ingesting cleaning products as a preventative measure to protect themselves from COVID-19.

{Footnote 21: We note reports that the woman in question was not a supporter of President Trump and had recently criticized the President on social media; when asked about this, she appeared to indicate that other news reports influenced the couple's behavior: "We weren't big supporters of [Trump], but we did see that they were using it in China and stuff[.]" See Woman Who Said She Drank Fish-Tank Cleaner Because of President's Advice Is Not a Trump Supporter, FoxNews.com (Apr. 2, 2020), https://www.foxnews.com/politics/arizona-woman-fish-tank-cleaner- trump-democrat. In light of this information, it would seem inadvisable to simply assume the truth of the claim that the woman's conduct was primarily influenced by the President's statements.}

Nor does the broadcast hoax rule prohibit expressions of opinion about COVID-19, such as those made by the radio commentators [such as Rush Limbaugh and Mark Levin] cited by Free Press. Free Press's suggestion that the Commission require broadcasters to balance the opinion of these commentators—all of whom appear to be generally supportive of the President's policies—with competing voices or disclaimers amounts to an attempt to use the current crisis to resuscitate the long-dead Fairness Doctrine. We decline that invitation, leaving to broadcasters the editorial decisions about airing political commentary and trusting the American public's ability to differentiate between medical advice and political opinion.

With respect to Free Press's proposal that we issue enforcement guidance or a policy statement recommending that broadcasters post prominent disclaimers when the President and others address the pandemic, we believe that such proposals are inconsistent with the First Amendment. Requiring such disclosures would constitute compelled speech, and "recommending" such disclosures through enforcement guidance or a policy statement would constitute government coercion by another name. And unlike standardized government disclosure requirements (like annual reports required by the Securities and Exchange Commission), the context-sensitive disclaimers requested by Free Press would improperly involve the federal government in making editorial judgments about whether broadcasters had accurately and sufficiently evaluated claims made by the President and other government officials.

Moreover, pressuring broadcasters to air such disclosures would impose significant burdens on them, burdens that could chill news coverage at a time when information is one of the only weapons the American public has to protect itself from a contagious and deadly virus.

Instead, we conclude that the antidote to the alleged harms raised by Free Press is—ironically enough—a free press. The rapid and comprehensive coverage of the present pandemic, free from burdensome disclaimers, agency investigation, or other government oversight, advances the public interest in maximizing information flow, while facilitating the vetting of statements by public officials via the ordinary journalistic process. {We emphasize, however, that the Commission has taken and will continue to take a proactive role in protecting consumers from actual fraud during this national health emergency. Among other things, the Commission has established a website to educate consumers about COVID-19 phone and text-based scams. See FCC, "COVID-19 Consumer Warnings and Safety Tips," https://www.fcc.gov/covid-scams.}

In short, we will not second-guess broadcasters (much less deploy the formal investigative power of the state against them) that are serving a critical function in providing the public comprehensive coverage of the current public health crisis and the government's response. We leave to the press its time-honored and constitutionally protected role in testing the claims made by our political leaders—as well as those made by national advocacy organizations.

The Federal Communications Commission believes that freedom of the press is "essential to a free society and a functioning democracy." ACCORDINGLY, it is ordered that the Emergency Petition for Inquiry IS DENIED.

This seems to me quite right. While the Court has, rightly or wrongly, held that speech broadcast over the airwaves is less protected by the First Amendment than speech in print, on the Internet, on cable television, and the like, such speech is still generally quite protected. And, both under the First Amendment and under the FCC's modern interpretation of its statutes, the FCC isn't in the business of resolving disputes over which statements are supposedly false or misleading. "[T]he antidote to the alleged harms raised by Free Press" is indeed "a free press," and while it's far from a perfect antidote to all sorts of harms, it's better, it seems to me, than FCC policing.

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  1. Robespierre also never concieved that the guillotine could take his head. Measures to pervert 1A will soon be used in novel ways against one. Will say again ‘Free Press,’ a perfect irony.

    1. The version I was always told comes from _A man for all seasons_ where he is counseled to kill his enemies before they can organize to kill him.

      The response is something to the effect of “The laws of England are like trees in the forest — if I chop them all down in the pursuit of the Devil, what tree will I be able to hide behind if the Devil turns on me?”

      The left does not understand this — they somehow think that they will always remain in power…

      1. Of course More got executed. The laws of England did nothing to stop Henry VIII.

        1. Yes they did. He was concerned enough about appearing to obey the laws of England that he made up laws before enforcing them. The same has been true of at least most modern dictators — Hitler, Stalin, Mao, and all the lesser ones.

          1. “he made up laws before enforcing them”

            Shrug. Still executed More.

            1. No one tells the king of England who he can’t have sex with, hater.

            2. And Hitler, Stalin, and Mao murdered 100 million people. They still went through the fig-leaf of laws. It still meant something.

  2. There is also evidence, I don’t know how valid, of more to the Fish Tank Cleaner death. Reportedly, she sought to divorce him in the past, had financial problems, and other issues. And what she told Alana Goodman makes me *really* wonder about husbandcide….

    https://www.thenewamerican.com/usnews/politics/item/35308-woman-who-fed-her-husband-fish-tank-cleaner-was-democrat-donor-had-serious-health-financial-troubles

  3. I’m as frustrated as anyone by Trump’s pathological lies. And–given how many Americans are devoted to him, and believe everything he says it true (and disbelieves everything he says is false)–he has enormous ability to influence the general public. His spreading of false and dubious medical information causes (I believe) great harm.

    But the danger to our free speech is great, if this sort of censorship is allowed. Greater even than the threat from this pandemic. If America writ large doesn’t want any more lies, or any more collusion with foreign governments, then we’ll have a far better way to prevent this in about 7 month–at the ballot box.

    (Trump’s vicious attacks against the media are even more harmful, IMO. But that’s a different topic.)

  4. Ugh. This is unbearably stupid.

    The fault doesn’t lie in Trump for lying; that’s just what he does, in the same way that your dog licks himself. He can’t help it.

    And the fix isn’t to wreck the First Amendment. Certainly not with the FCC; an administrative body that is, on the best of days, staggeringly incompetent.

    No, the fault is with people that continue to believe the lies despite all evidence to the contrary. And, to be honest, I don’t know what the fix is. After all, we’ve seen that a lie can travel around the world and back while the truth is lacing up its boots.

    And what chance does the truth even have when people are yelling that boots are a liberal media conspiracy?

    1. It would help if we taught basic logic in our schools, which we don’t.

  5. I am troubled by the massive amount of social harm done by the lies told by President Trump, Fox News, conspiracy theorists, science deniers, Russian bots, and various and sundry other enemies of truth. I don’t see how it can be seriously disputed that their lies haven’t almost totally upended American civil discourse and political stability.

    On the other hand, I read depressingly common stories from countries with blasphemy laws and hate speech laws about people being fined and jailed for basically expressing their opinions on controversial subjects. That’s not good either.

    I sometimes wonder if it might be possible to have some middle ground, in which people who claim, i.e., that vaccinations cause autism, aren’t protected, on the ground that that’s a claim that can be objectively proven or disproven scientifically, while at the same time leaving in place full protection for all expressions of opinion, no matter how noxious some consider those opinions, because, well, opinions ought to be protected. Kind of like actionable defamation, in which false statements of fact can be sued over, but not matters of opinion. Obama was born in Kenya would be actionable, Obama was a terrible president would not be.

    And then I think some more about it and realize probably not. We appear to be stuck with one extreme or the other.

    1. I see you didn’t list the lies by Democrats, not even Pelosi, Warren, Bernie, and all the others who are in office. Telling omissions, bud.

      1. My side god, your side bad.

        Pretty standard.

        1. Good, not god but I guess that fits too.

          1. Bob, and Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf:

            On those occasions when it is possible to independently verify who is telling the truth, if you do so, you will consistently find that Fox News and the Republicans play far faster and looser with the truth than CNN and the Democrats do. If you want an example, during the 2016 campaign, the cold, hard economic numbers –readily available from original sources on line — indicated that we had a pretty good economy. That didn’t prevent Fox News from claiming we were on the verge of another recession in the hope of hurting the Democrats.

            Try it for yourself if you don’t believe me. Next time there is a dispute between Fox and CNN over what the facts are, and they happen to be facts that you can independently verify, check it out and see who is mostly telling the truth.

            Yes, sometimes Democrats lie too. But comparing the two is like comparing the Grand Canyon to a mud puddle.

            In the meantime, do either of you have a substantive response to my central point?

            1. It doesn’t deserve a “substantive response “, its just standard issue “let’s censor my enemies” nonsense with extra helpings of faux outrage.
              .

              1. Where did I say that my enemies should be censored?

                1. In the first paragraph.

                  Enemies [Trump, Fox News] and some cardboard villains. Not a single example from your side.

                  1. And I went on to say in my final paragraph that they shouldn’t be censored.

                    1. No, technically you just denied there was a middle ground, you didn’t say which extreme you’d pick. Though I did get your drift.

                    2. Brett, it’s true that I didn’t explicitly say that they shouldn’t be censored. But my willingness to even entertain the possibility of removing protections from speech was explicitly limited to proveably untrue facts; I went out of my way to say that opinion should be protected.

                      But just so there is no confusion: I do not believe in censoring people I disagree with. Even though I think they are responsible for a massive amount of social harm. Some rights are rights no matter what consequences they produce.

                    3. That was, in fact, the “drift” I got. Just pointing out you could have been explicit, given that you were expressing some degree of solidarity with the people calling for the censorship.

            2. “…when it is possible to independently verify who is telling the truth…”

              I’ll borrow a quote from one of Frank Herbert’s Dune books: “Whose truth? Modified in what way? In what context?”

              Whom should we trust with this weighty responsibility? Politico fact-checkers? Snopes? The unblemished governments themselves?

              To use a recent reason.com article, is the statement “80% of US pharmaceuticals are imported from China” true? False? Partly true? True enough? If true enough, then for what?

              With respect to your anti-vaxxer example, much of that foolishness was based on a fraudulent study, though it wasn’t decisively exposed as such until years later. Given that situation, would typical early anti-vaxxer assertions have been “true”?

              I think we could all come up with similar examples – it’s easy. You might say these examples represent uncommon cases, but those are often the ones of great importance.

              I think we all can point to independent fact-checkers validating falsehoods, ignoring relevant evidence, and failing at nuance. Now imagine, if you can, a government which is motivated by the interests of its officials, bureaucrats, and extra-governmental power-brokers rather than the pure pursuit of truth. I would say it’s exceedingly dangerous to allow any government to determine what is generally true. (Note that this differs from courts deciding what science is valid, or “true”, for the purposes of establishing evidence at trial, e.g. establishing unique identity via fingerprints.)

              1. Venerable Lurker, I agree with much of what you say, and my ultimate bottom line was that the middle ground I’m seeking probably doesn’t exist.
                That said, there are some claims that are provably flat out lies. Obama was not born in Kenya. Hillary Clinton was not involved with a ring of pedophiles, nor did she have anything to do with the death of Vince Foster. 9/11 was not an inside government job, and the Sandy Hook school shooting actually did happen. Some questions really do have only one right answer, and some wrong answers are perpetrated by liars who know full well that they’re lying.

                1. There are serious issues with the postmark on Obama’s draft registration. That is a fact — it doesn’t inherently mean it is fraudulent but it is a fact that there are issues with it.

                  1. There are serious issues with the postmark on Obama’s draft registration.

                    No, there aren’t.

                2. “…there are some claims that are provably flat out lies.”

                  I can agree with that, but I would say that such instances are so rare as to be negligible for the purposes of attempting to develop a better policy.

                  Let’s consider your example of “Obama was born in Kenya would be actionable, Obama was a terrible president would not be.” Seems entirely reasonable to me on the face of it. However, let’s rearrange it to reflect the 1960 election: “Kennedy has Addison’s Disease would be actionable…”. The full scope of Kennedy’s ailments, including his Addison’s, didn’t come out until years later. At the time, plenty of people were just as certain that Kennedy didn’t have Addison’s as people are now that Obama was born in Hawaii.

                  Unfortunately, facts are slippery critters. I think we cannot even drop 1A protections for provably false assertions. There are still remedies, such as civil action for libel and slander. That might be as good as it gets.

      2. Jesus,
        The OP is ALL ABOUT TRUMP. Why on earth does every comment related to Trump’s endless lies have to also include “Nancy Pelosi lies 1/1000th as much as Trump. But she does lie.” Or, “Biden lies 1/162nd as much as Trump. But he does lie.”

        It’s a really weird ButWhatAbout to throw in there. Now, if someone posted that “Trump is the only politician that lies, and therefore…”; then, of course, pointing out other politician lies is relevant.

        When a Democrat is president in the future, her or his lies will be much much more important that, say, Devin Nunez whoring his integrity and saying more lies. Not that he does not lie. But his lack of honesty or ethics will be wholly irrelevant to falsehoods uttered by the most powerful person on the planet.

        The Usual Suspects of Trump supporters here really feel the need to bend over backwards to excuse Trump’s bad conduct. (I already seen people chiming in to whine about how unfair it was to not give an extensive list of bad bad Dems who also lie.) I suspect that you guys were much more human, and much more humane, before Trump was shat into American political life. And I have hopes that you’ll return to normalcy after he has fled the scene and more-typical Republicans take his place.

        1. “And I have hopes that you’ll return to normalcy after he has fled the scene and more-typical Republicans take his place.”

          That’s a silly hope.

          Trump merely accelerated what was present already. There are two types of Republicans:

          Trumpists.

          And those that have left the party.

          (I suppose that, charitably, you can say that there are those waiting for a return to normalcy, but those are either Trumpists in denial, or those who have yet to formally leave the party)

          1. Just a thought, but a “typical Republican” will always be demonized by the left as much as Trump is, only to have the left later embrace him a pretty good guy (like Romney or G.W.). The only one to escape this in the modern era was Ike, for obvious reasons.

            Trump just fights back more, making it seem worse to you. He lies about as much as Obama did, or both Bushes, or Nixon, but maybe not Carter.

            I also think you take a difference of opinion as a lie. For instance, the economy was pretty okay during Clinton’s campaign, but did Clinton like saying “recession, recession, recession”? Sorta, because there was a short recession that was over by the time voting started. So Clinton lied just about as much as Trump did saying “stagnation, stagnation, stagnation” about the Obama economy which was sorta okay, but stagnant.

            1. I agree the unfair demonization of Bush41 and Romney helped give rise to Trump (this time when the boy cried, there was a wolf). But no, Trump is in a league all by himself when it comes to being a mafia-boss man-baby who lies like a child.

              Since has no ideology (other than himself), Trump could have run as governed as a liberal Democrat. Even if I agreed with him 100% on his policies, I would never vote for him.

              1. Every time the boy cries wolf, he says “There’s really a wolf! Honest!”

                Every. Single. Time.

                1. True. But, he was eaten when there actually was a wolf. In this instance, the boy – liberals and Democrats – have been eaten by Trump. What is more disturbing, is the nation has been eaten too.

                  1. For somebody who’s been eaten, you seem fairly lively.

          2. That reply was suppose to be for santam, not loki. Thanks.

        2. Do you have Windex to clean your monitor? All that spittle must really cloud it.

          1. A David Post sock puppet?

    2. Whatever happened to sunlight being the best disinfectant?

  6. Well, the FCC could actually issue policy that any media statement not containing multiple named verifiable sources, (not to include other media) be clearly labeled as opinion in either a subhead to the headline (print or online text presentation) or with a continuous banner running across the screen (broadcast or online video presentation).
    Sort of like a truth in advertising label, or the warning on cigarettes.

    1. Define “Verifiable Source”

      By definition, the POTUS *is* one…

      🙂

  7. This petition is an almost perfect illustration of TDS, they create a theory of bad conduct based on falsehoods demanding actions that they should know aren’t possible.

    I’ve been struck by how much the left mirrors the faults they see in Trump, jumping at all sorts of bizarre theories, ascribing all sorts of malevolent plots to the evil genius Trump while at the same time calling him impulsive, stupid, incompetent and deranged. This has been going on since the election. I’m not surprised that Trump is lashing out.

    1. “I’m not surprised that Trump is lashing out.”

      So, you too are familiar with Trump since, oh, the 1970s?

      “Trump lashes out at enemies real and perceived” is a headline akin to “Dog bites man.”

      Wake me up when someone says, “Trump acted in a presidential manner, turned the other cheek, calmly considered the options without favor or prejudice, and then did what he truly thought was best for all of Americans and posterity without worry for his self-interest.”

    2. Who has called Trump an evil genius?

  8. People who express stupid, bigoted, false, mean, and/or ugly things have rights, too.

    In some cases — fraudulent assertions about medicine, stocks, and other subjects, for example, or child pornograph — expression may be regulated and/or forbidden.

    These claimants seem distant from those cases.

    1. Yes, you do. Express stupid, bigoted, false, mean, and/or ugly things. You certainly have rights.

  9. In short, Free Press is a partisan organization, and deserved a partisan response. Which it got.

  10. FCC Rejects Petition to Censor Broadcasts of President . . .
    Broadcasters are not the arbitrator of what is truth. From watching the news it is well understood that broadcasters have agenda of their own and what they say is not always the truth. They can even take the truth and present in certain way to make it appear to be false.
    If a broadcaster disagrees with what the president says they have commentators to state the broadcaster disagreements. Broadcasters don’t carry what the president says because they say it is not truth then for political reasons they would not give to the public the information that the voters need to choose whom to vote for. Thus our constitution is in danger of falling.

  11. We’ve had Presidents lie when addressing Americans before, but never in a way that put them directly in danger.

    1. captcrisis, I seem to remember Bush lied, people died.

      1. Or “I tell you time and time again, I will not send your boys to fight in a foreign war.” FDR, circa 1940…..

        1. Arguing that was a lie would be a stretch, dontcha think, Ed?

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