The Volokh Conspiracy

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Free Speech

Baltimore Prosecutor Asking FCC to Investigate TV Station for Criticizing Her

The elected prosecutor (Baltimore State’s Attorney Marilyn Mosby) is claiming that the station's coverage of her is "blatantly slanted, dishonest, misleading, racist, and extremely dangerous."


Here is the complaint letter, sent to the head of the FCC, signed by the Baltimore City State's Attorney's Office Communications Director:

This is a formal complaint requesting an investigation into the broadcasting practices and media content distributed by FCC-licensed station WBFF, a Baltimore City-based Fox News-affiliated network, specifically the content distributed to the public about the Baltimore City State's Attorney's Office (SAO), a government entity, and its lead prosecutor, State's Attorney Marilyn Mosby that upon viewing could reasonably be categorized as blatantly slanted, dishonest, misleading, racist, and extremely dangerous.

Under the FCC's rules, "[b]roadcasters may not intentionally distort the news," and "rigging or slanting the news is [deemed] a most heinous act against the public interest." Given that FCC guidance, an investigation into the persistent and slanted broadcasts of WBFF against our office and the State's Attorney would prove that the WBFF administrators are guilty of such "heinous act[s]."

In my capacity at the States Attorney's Office, I have noted that the news coverage of the WBFF persistently follows a disconcerting and dangerous pattern: beginning with a slanted, rigged, misleading, or inflammatory headline; followed by a conspiracy theory; and supported with guest commentary from disgruntled ex-employees or political opponents that lend false credibility to their biased coverage or omission of facts. Utilizing this pattern of practice in their broadcasts, citizens are not only consistently misinformed about the basis and intent of prosecutorial policies, additionally the merit of criminal convictions are distorted to detract from the public good championed by prosecutors. Most disturbingly, there appears to be an intentional crusade against State's Attorney Mosby, which given today's politically charged and divisive environment, is extremely dangerous.

In assessing the news content generated in Baltimore City, I am struck by the frequency of coverage by the WBFF about the State's Attorney's Office and its head SA Marilyn Mosby. In 2020, there were 248 stories by the WBFF solely about SA Mosby. In comparison, other local news networks ran significantly fewer stories.  When assessed over the same period in 2020, Baltimore City stations did the following: WBAL – 26 stories; WJZ – 46; and WMAR – 10. So far in 2021, the WBFF has run 141 slanted stories.

While the frequency of coverage in question by the WBFF would give any reasonable person pause, it is the tone of the coverage that violates the FCC rules. The coverage by the WBFF represents acts that are not merely against the public interest; they also represent acts that are inflammatory against the safety of an elected official. In the public sphere, Fox News is infamous for its bias against people of color, and even more against those who could be deemed "progressive" people of color. Currently, the Fox national news network airs a nightly show with Tucker Carlson, despite recent calls by civil rights groups to terminate his employment because of Carlson's frequent endorsements of white supremacy views. In 2015, the WBFF was forced to apologize for editing a video to make it falsely appear that Black protesters were chanting "kill a cop!"

Over the last few years, it's become clear that the publication of the home addresses of elected and public officials—particularly when released by a politically charged media or network—creates a risk to the lives of those public officials and their families. Nonetheless, in 2020, while running one of its distorted news stories about the State's Attorney, the WBFF deliberately broadcast the home address of State's Attorney Mosby on live TV during one of its news segments. It is hard to see this as a mistake given the known risk to SA Mosby, her husband, and her children residing in the home.

As if that violation was not enough, the WBFF demonstrated that their heinous acts and deliberately dangerous activities had no boundaries when, in April 2021, they made a formal inquiry attempting to find out the schools the SA's children attended. Since taking office over 6 years ago, the State's Attorney has received innumerable personal death threats and hate mail, including letters describing how her husband would be killed on the steps of her home.

These threats against SA Mosby are facts known by the WBFF—they aired reports of the numerous death threats made against her. As such, when the WBFF network and its administrators willfully publicize the State's Attorney's home address, and when they take further steps to facilitate the publication of where her young children attend school, their acts rise beyond mere professional irresponsibility and become what can only be reasonably deemed malicious, against the public interest, and a pointed threat to the safety of the State's Attorney's life and that of her family.

Below are a few instances of the WBFF's distorted coverage about the State's Attorney's Office and its leadership

4.15.21 | Rollout of new policies by Marilyn Mosby needed more collaboration, experts say | It's been about three weeks since City State's Attorney Marilyn Mosby doubled down on her plan to permanently stop prosecuting what she calls "low-level" offenses.

4.1.21 | Marilyn Mosby Claims 93% Felony Conviction Rate – here are the cases she doesn't count | Baltimore City State's Attorney Marilyn Mosby says 93% of felony cases ended in convictions in 2020, but not everyone is convinced.

9.25.20 | Connection to Dark Money Looks to Shape Prosecution of Police | Dark money is shaping the way Baltimore City addresses crime. The authors of an op-ed that appeared in The Baltimore Sun this week describe themselves as being former federal prosecutors.

9.17.20 | Baltimore City State's Attorney Avoids Oversight | Findings from an Operation: Crime & Justice investigation show City and State watchdog agencies don't audit City State's Attorney Marilyn Mosby's Office.

9.14.20 | Role Top Prosecutor Plays in Baltimore Violence | Since the riots in 2015, Baltimore City has seen hundreds of lives lost. Sean Kennedy who is a visiting fellow at the Maryland Public Policy Institute tells Fox45 News, "The State's Attorney is a crucial player in curbing crime in any jurisdiction."

7.21.20 | Money Machine Behind Mosby's Trip | The money machine behind Marilyn Mosby's 2019 Europe trip has many moving parts.

As you can see from the examples cited, the broadcast and news coverage by the WBFF about the Baltimore City State's Attorney Office, and more specifically against the State's Attorney, 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. This sort of coverage incites racists to act upon their animus for the State's Attorney.

Two years ago, pipe bombs were sent to George Soros and other elected officials after Fox News spent years broadcasting stories that set Soros up to be a villain. Just last month, Baltimore City-based Fox 45 was accused of peddling anti-Semitism by Media Matters following yet another biased news segment that aired on SA Mosby, within which she was accused of being a George Soros "puppet" that was "bought and paid for" [Note: State's Attorney Mosby has never received a penny from George Soros or any of his political groups]

To be clear, the State's Attorney's Office is not above receiving criticism. We welcome being held accountable, and we support First Amendment freedom of speech. However, what we find troubling, abhorrent, and outright dangerous, is that the distinctly relentless slanted broadcast news campaign, against the Baltimore City State's Attorney's Office and its lead prosecutor, has the stench of racism.

Before presenting this complaint to the FCC, in my capacity as Director of Communications, I've made several complaints to the Baltimore City WBFF station regarding its frequent, disturbing, and slanted news coverage. Those efforts this past year, included in-person meetings and phone calls with producers and news station managers. In fact, I've made every effort to request that the WBFF cease its intentional distortion of the news; but we have yet to see a reversal of their direction.

The truth of the matter is I am deeply concerned that if the WBFF's coverage is not curtailed and ceased, then someone is going to get hurt. I implore and encourage you, Madame Chairwoman and Commissioners, to enlist the full investigative and enforcement powers granted to you by the Federal government to take action against the WBFF as soon as possible.

Note that even in the 1969 FCC statement that calls "[r]igging or slanting the news" "a most heinous act against the public interest," the FCC made clear that:

But in this democracy, no Government agency can authenticate the news, or should try to do so. We will therefore 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.

Given the lower level of First Amendment protection that the Court has historically given over-the-air television and radio broadcasting, some policing by the FCC of alleged "distortion" has been allowed (see, e.g., Serafyn v. FCC (D.C. Cir. 1998)). But I note that none of the letter's claims of "distortion" are supported by any actual explanation of why the stories are supposedly inconsistent with the facts.

Nor would it be constitutional under modern First Amendment doctrine for the government to censor broadcasting speech because it's supposedly "racist"; whatever content-based broadcasting regulation may be permissible, it can't be viewpoint-based. (Cf. FCC v. Pacifica Foundation (1978), where the Court upheld the "seven dirty words" ban, but the lead opinion noted that "If there were any reason to believe that the Commission's characterization of the Carlin monologue as offensive could be traced to its political content—or even to the fact that it satirized contemporary attitudes about four-letter words—First Amendment protection might be required," and Matal v. Tam (2017), which condemned viewpoint discrimination even in government-operated benefits such as trademark registration.)

I also don't know of any FCC policy that bans the publication of the home addresses of politicians (or of others). (The story in which her address appeared was "The road to a federal tax lien: How the Mosbys could have avoided tax trouble"; the address was apparently on photos of the tax lien, from public records, though it was fuzzed out on the web site version, after Mosby's office complained.)

And certainly critical news coverage, whether of prosecutors, police officers, or anyone else, can't be suppressed on the grounds that some tiny fraction of the audience may be so angered by it that they will commit crimes against the people being criticized. I expect the FCC to (rightly) dismiss the complaint. Thanks to Larry Seltzer for the pointer.