Baltimore's Top Prosecutor Attempts To Send FCC Against Local Fox Affiliate

Don’t call yourself a supporter of the First Amendment while attempting to punish a media outlet for criticizing you.

The office of Baltimore's top prosecutor, State's Attorney Marilyn Mosby, is trying to convince the Federal Communications Commission (FCC) to investigate the city's Fox affiliate because of its critiques of her.

This is not, of course, how Zy Richardson, Mosby's communications director, frames the issue in the May 5 letter she has sent to FCC Chairwoman Jessica Rosenworcel. Richardson attempts an argument that Fox affiliate WBFF's coverage of Mosby is "misleading, racist, and extremely dangerous."

What the letter is actually complaining about, though, is constitutionally protected speech. Part of the letter's "evidence" is that WBFF simply runs far more stories about Mosby than the other Baltimore networks. Richardson incorrectly argues that the "tone" of Fox's coverage violates FCC rules. She writes that Fox News is "infamous for its bias against people of color," shifting abruptly to a complaint about Tucker Carlson's commentary, which has nothing to do with whether WBFF's coverage of Mosby is some sort of regulatory violation.

The letter complains that WBFF has broadcasted Mosby's home address and attempted to find out which schools her children attended, which the letter classifies as part of the network's "heinous acts and deliberately dangerous activities."

There is no point in the letter where Richardson actually details anything WBFF has done that is a violation of the law or FCC regulations. The letter links to several stories that she believes are "so slanted that they are not simply a dog-whistle to the right wing, they have become a megaphone that amplifies, encourages, and provides fodder for racists throughout the city and beyond, to continue sending hate mail and death threats."

One of many problems with this claim is that there's actually no sign of these alleged racist dog whistles in the six pieces she linked to. The pieces all involve analyses of the decisions being made by her office, like fewer prosecutions of low-level crimes and drug crimes, travel funded by outside organizations, and oversight of her office. All of this is completely fair game for network coverage, and several of them even include responses by her office.

But, yes, there's a lot of critical coverage of Mosby's office at WBFF, and it's absolutely reasonable for an independent observer (which, to be clear, Mosby's communications director is not) to conclude that WBFF is definitely not a fan of Mosby, playing instead to a tough-on-crime audience that supports the drug war.

But this complaint is an attempt to marshal the power of the government against critics of a government official. UCLA Law Professor Eugene Volokh over at The Volokh Conspiracy (hosted on this site) notes that contrary to what Richardson writes (that the FCC is authorized to act against slanted news), the FCC has actually indicated, "no Government agency can authenticate the news, or should try to do so," and that they will "eschew the censor's role, including efforts to establish news distortion in situations where Government intervention would constitute a worse danger than the possible rigging itself."

Mosby's attempt to get the federal government to punish WBFF for the viewpoints it expresses is very clearly unconstitutional. Richardson explains that her requests to the affiliate that "WBFF cease its intentional distortion of the news" has not been led to results, which is why she's turning to the FCC. But there is nothing in the letter that provides any evidence that the news has been distorted. It's a simple assertion they're asking the FCC to accept.

FCC Commissioner Brendan Carr, a Republican nominated to the position by President Donald Trump, blasted Mosby's letter Monday, calling it an attempt by "Democratic officials to pressure the FCC and its regulated entities into censoring news coverage and political speech that Democrats don't like."

Richardson responded to the Baltimore Sun by trying to insist that she's not trying to engage in censorship of the press, despite a massive pile of evidence otherwise.

"We are very clear in the letter that we support free speech and we support accountability of public officials," Richardson wrote. "To say otherwise is willfully ignorant. We are simply asking the FCC to look into the racist and hateful rhetoric that is consistently broadcast by WBFF Fox 45 and its potential to incite threats of violence on the state's attorney and her children."

To be clear here: Richardson is not just asking the FCC to "look into" what WBFF is doing. The letter's opening sentence is that it's a "formal complaint" that accuses the network of violating FCC regulations and ends by asking the FCC's chairwoman to "take action against the WBFF as soon as possible." Carr is not the person being willfully ignorant here.