Trump's Vision of Broadcast Regulation Is a Threat to Conservatives
History suggests that Republicans will regret letting the FCC police TV programming.
"When 97 percent of the stories are bad," President Donald Trump declared on Friday, "it's no longer free speech." When TV networks "take a great story" and "make it bad," he added, "I think that's really illegal."
Trump was wrong on both points. And in groping toward a justification for the regulatory threats that preceded Jimmy Kimmel's expulsion from his late-night slot on ABC, Trump embraced a principle that historically was bad for conservatives—one they are apt to regret reviving.
"You have a network and you have evening shows, and all they do is hit Trump," the president complained. "They're licensed. They're not allowed to do that."
Trump made similar noises during his first administration, saying "network news has become so partisan, distorted and fake that licenses must be challenged and, if appropriate, revoked." But Ajit Pai, the Trump-appointed chairman of the Federal Communications Commission (FCC), rejected that suggestion in no uncertain terms.
"I believe in the First Amendment," Pai said. "The FCC under my leadership will stand for the First Amendment, and under the law the FCC does not have the authority to revoke a license of a broadcast station based on the content of a particular newscast."
The difference this time around is that the FCC's current chairman, Brendan Carr, clearly has no such constitutional compunctions. When Carr said broadcasters could face "fines or license revocation" if they continued to air Kimmel's talk show, he preposterously invoked the FCC's policy regarding "broadcast news distortion."
That policy applies to a "broadcast news report" that was "deliberately intended to mislead viewers or listeners" about "a significant event." Whatever you think of Kimmel's intent when he erroneously suggested that the man accused of murdering conservative activist Charlie Kirk was part of the MAGA movement, a comedian's monologue is not, by any stretch of the imagination, a "broadcast news report."
Carr and Trump also alluded to broadcasters' vague duty to operate in "the public interest." Because broadcasters are "getting free airwaves from the United States government," Trump thinks, they have a legal obligation to be fair and balanced.
That notion is reminiscent of the FCC's defunct Fairness Doctrine, which required that broadcasters present contrasting views when they covered controversial issues. The FCC repudiated that policy during the Reagan administration, precisely because it impinged on First Amendment rights.
The Kennedy administration, for example, had deployed the Fairness Doctrine against the president's political opponents. "Our massive strategy," former Assistant Secretary of Commerce William Ruder acknowledged a decade later, "was to use the Fairness Doctrine to challenge and harass right-wing broadcasters and hope that the challenges would be so costly to them that they would be inhibited and decide it was too expensive to continue."
Nixing the Fairness Doctrine allowed an efflorescence of political speech on talk radio, enabling the rise of influential conservative commentators such as Rush Limbaugh. Exhuming and extending that policy, as Carr and Trump seem to favor, would be short-sighted as well as constitutionally dubious.
Although "it might feel good right now to threaten Jimmy Kimmel," Sen. Ted Cruz (R–Texas) warned last week, "when it is used to silence every conservative in America, we will regret it." It is "unbelievably dangerous," Cruz emphasized, "for government to put itself in the position of saying, 'We're going to decide what speech we like and what we don't, and we're going to threaten to take you off air if we don't like what you're saying.'"
The root of the problem is the arbitrary distinction that the Supreme Court has drawn between speech aired on TV or radio stations and speech in every other medium. That distinction never made much sense, and it is even harder to defend in the current media environment.
Government licensing of newspapers, websites, or streaming services would be a constitutional nonstarter, inviting all sorts of interference with freedom of speech. Government licensing of broadcasters poses similar perils, as Trump and Carr seem keen to demonstrate.
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