The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Volokh Conspiracy

FCC chairman rejects possibility (raised by Trump) of revoking broadcasters' licenses for supposed 'Fake News'


Ajit Pai, chairman of the Federal Communications Commission, on Capitol Hill in Washington on June 20. (Aaron P. Bernstein/Reuters)

Last week, President Trump tweeted:

Federal Communications Commission Chairman Ajit Pai disagrees. See Brian Fung's The Switch post here at The Washington Post:

The Federal Communications Commission doesn't have the power to revoke any NBC station's broadcast license over the content it produces, FCC Chairman Ajit Pai said Tuesday, putting a damper on recent suggestions by President Trump that NBC should be penalized for its critical coverage of the White House.

Pai's remarks, delivered at a Washington conference, aimed to settle a flare-up over media law stemming from an NBC report that depicted a president at odds with his most senior military advisers when he indicated that he wanted what amounted to a tenfold increase in the U.S. nuclear arsenal. Trump called the report "pure fiction."

"I believe in the First Amendment," Pai said at an event organized by George Mason University's Mercatus Center. "The FCC, under my leadership, will stand for the First Amendment. 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."

Whether the FCC can refuse to renew a license based on a particular station's alleged pattern of falsehoods is a more complicated matter, especially since existing First Amendment precedents allow more restrictions on broadcast TV and radio than for other media (see, e.g., Red Lion Broadcasting Co. v. FCC (1969), which upheld the old Fairness Doctrine). But I think Pai is sending the message - an entirely correct message, in my view - that the FCC shouldn't be in the business of stripping licenses based on a president's complaints about a broadcaster. And I think that today's Supreme Court would be prepared to overrule Red Lion and similar cases, and offer broadcasters full First Amendment protection, as recent opinions by both Justice Ruth Bader Ginsburg and Justice Clarence Thomas suggest.