If Brendan Carr Cares About Free Speech, He Should Make These Changes at the FCC
Now is the perfect time for the FCC to change its precedent to comply with the First Amendment.
Brendan Carr used to talk a big game on free speech. In 2021, when members of Congress urged the Federal Communications Commission (FCC) to block the sale of a Miami radio station over its perceived political slant, Carr—one of the agency's commissioners—called that move "a deeply troubling transgression of free speech and the FCC's status as an independent agency." He urged his colleagues to push back and assured the public that the FCC's review of the transaction would be "free from political pressure."
These days, Carr has little credibility on freedom of speech. Now the chair of the Commission, he has been busy reopening investigations against broadcast networks because of their editorial policies, threatening public broadcasters ostensibly about how they raise sponsorship funds (but really about their editorial positions), threatening media companies over their hiring practices, and strong-arming technology companies about issues well beyond the FCC's limited statutory mission.
Most recently, he took to social media to berate NBC owner Comcast for its coverage of Kilmar Armando Abrego Garcia—the migrant illegally sent from Maryland to a prison in El Salvador, and threaten a "news distortion" probe. Carr's post triggered a complaint from the Center for American Rights, which filed a complaint against 60 Minutes that Carr reopened in January.
The FCC now has a chance to put its money where Carr's mouth used to be. In April, the Commission invited public comments on which rules it should scrap—part of a proceeding cheekily titled Delete, Delete, Delete. The goal is to cut outdated regulations, reduce barriers to competition, and adapt to technological changes.
The Public Notice requesting comments didn't focus on media content rules. Buried in the fine print, however, it notes that certain rules or statutory requirements "have been found to be unconstitutional." It then asks "whether constitutional concerns provide a basis for repealing any existing FCC rules or should inform the Commission's approach to implementing or enforcing particular statutory provisions." Glad you asked.
The FCC should start by cutting back its regulation of broadcast speech. No greater tension exists in the Communications Act than the FCC's authority over broadcast content—the law expressly withholds from government the power to "interfere with the right of free speech by means of radio communication." Not only does this deny the FCC "the power of censorship," it also bars any "regulation or condition" that interferes with freedom of speech. The Supreme Court has reaffirmed repeatedly that these statutory limits "were drawn from the First Amendment itself" and that "the 'public interest' standard necessarily invites reference to First Amendment principles."
Among other things, the FCC should immediately terminate its investigation of 60 Minutes over the editing of its October 2024 interview with Kamala Harris, its review of ABC over fact-checking candidate Donald Trump during a presidential debate, and its examination of NBC under the "equal opportunity" rule (with which the network complied) for Harris' appearance on Saturday Night Live. Each of these investigations were dismissed right before Trump's inauguration, but Carr revived them as one of his first acts as chair. Needless to say, the FCC should not now initiate a news distortion investigation against NBC.
Carr says the FCC operates based on precedent and that he was only following the rules established by earlier "Democrat" administrations. That's nonsense. But even if that were true, now is the perfect time for the FCC to change its precedent to comply with the First Amendment. As Carr himself put it in 2021, "A newsroom's decision about what stories to cover and how to frame them should be beyond the reach of any government official, not targeted by them."
And while it reviews its outdated content regulations, the FCC should eliminate its "news distortion policies" (the basis of the 60 Minutes investigation), significantly narrow or eliminate its indecency rules, and reform or eliminate its antiquated regulation of children's television. Courts blocked efforts to enforce the FCC's incomprehensible indecency rules more than a decade ago, and the Commission never completed a 2013 proceeding aimed at reforming them. Likewise, the children's television rules were adopted in the era of Saturday morning cartoons and are no longer relevant in a world dominated by digital media and streaming services.
Admittedly, this may be too much to ask of a chair who struts the halls of the agency sporting a Trump lapel pin, particularly when the president is taking to social media demanding revocation of CBS' broadcast licenses. But it would be the principled thing to do.
This article originally appeared in print under the headline "FCC Free Speech Flip- Flop."
