The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.
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.
