Free Speech

From FCC Commissioner Brendan Carr, About Baltimore Prosecutor Marilyn Mosby's Complaint

Released May 10, but just posted on Westlaw.

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For more on the controversy, see this May 7 post; here is the FCC release:

Last week, the Office of the State's Attorney for Baltimore City, led by Democrat Marilyn Mosby, filed a "formal complaint" with the FCC asking the Commission "to enlist the full investigative and enforcement powers granted to you by the Federal government to take action against the [local broadcaster] WBFF as soon as possible" for "the tone" and "the frequency of" stories by WBFF journalists about State's Attorney Marilyn Mosby.

A federal grand jury has been investigating State's Attorney Marilyn Mosby for financial dealings, and the WBFF newsroom has run several investigative stories regarding possible corruption within the State's Attorney's Office.

FCC Commissioner Brendan Carr issued the following statement in response:

"The State's Attorney's Office, led by Democrat Marilyn Mosby, has launched a chilling and direct attack on free speech and journalistic freedom.  The complaint her office filed with the FCC asks the Commission to censor a newsroom simply because journalists are doing their constitutionally protected jobs and shining a light on the work of the State's Attorney.  Invoking the power of the state to silence journalists for unfavorable coverage strikes at the very heart of the First Amendment.

"It is particularly troubling that a public official would work to silence reporters that are investigating her work at a time when federal prosecutors have already opened a criminal investigation into her activities.

"Indeed, the day after the State's Attorney's Office filed its complaint with the FCC, the targeted newsroom was awarded four prestigious Regional Edward R. Murrow awards for journalism excellence, including for one of its stories covering the work of the State's Attorney's Office.

"The State's Attorney's Office complaint alleges that there is 'troubling, abhorrent, and outright dangerous' conduct going on here.  They are correct in this respect—it is the conduct of the State's Attorney's Office that is troubling, abhorrent, and outright dangerous.

"Yet this complaint is part of a recent and troubling surge in efforts by Democrat officials to pressure the FCC and its regulated entities into censoring news coverage and political speech that Democrats don't like.  The FCC should make clear that it will not operate as the DNC's speech police.  That is why the FCC must dismiss this complaint with prejudice by the end of today.  No journalists should have a complaint like this from their city's top prosecutor hanging over their newsroom."

I have no view on whether Democrats or Republicans are more culpable on such matters, but I agree with Commissioner Carr that Mosby's complaint is unsound. If other Commissioners speak up about this, in either direction, I'd love to post their comments as well.

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  1. Proper reply.
    Commissioner Carr: Yes, a lawyer. Yes, from a Washington law firm. Not Ivy indoctrinated.

    The lawyer profession scores a point for itself. Not on the arrest list.

  2. The most alarming thing is that this challenge came from the State’s Attorney for Baltimore City, not the head of Baltimore City’s building code inspectors or a member of water board. The challenge was absurd but might be somewhat forgivable if raised by someone who was a specialist in building codes or water treatment and distribution rather than an office which is supposed to understand the law.

    1. As David Bernstein said:
      “Law is politics,” and only politics, according to a mantra popular on the legal left…

      1. That legal realism sounds more like what I hear on the right than the left.

        1. I don’t think so. Duncan Kennedy, Mark Tushnet, Catharine MacKinnon. Give me three conservatives who have embraced the “law is politics” meme.

  3. That FCC release was all going great until the last hackish paragraph.

    1. For once I agree with Lathrop. Throwing in the phrase “Democrat officials” phrase was just icing on the hackishness cake.

      1. One thing I don’t understand is why Republicans persist in using “Democrat” as an adjective. The best rhetorical technique, as most lawyers know, is to present oneself as the voice of neutral authority and reason. Using “Democrat” as an adjective, in contrast, makes the user appear as a partisan hack.

  4. This is criminal misconduct in public office.

  5. Brendan Carr’s illiteracy suggests someone should check the Georgetown and Catholic degrees he claims to possess.

    Mr. Carr sounds like a perfect Trump pick, though . . . a whining, White, male clinger.

  6. filed a “formal complaint” with the FCC asking the Commission “to enlist the full investigative and enforcement powers granted to you by the Federal government to take action against the [local broadcaster] WBFF as soon as possible” for “the tone” and “the frequency of” stories by WBFF journalists about State’s Attorney Marilyn Mosby.

    I’ve always said bias is more in the choice of stories to harp on day after day, week after week, than in “fact checking”.

    Which is fine. The purpose of speech is to have an effect on the behaviors of others. Just recognize it.

    Making sure your opposition knows Big Brother is watching is just bad form.

    Politicians squeaked “Limited airwaves! Limited airwaves! Therefore we need fair time for erryone!”, cynics suggested, nay, knew, it was really about what we’re seeing unfold right here.

  7. It was a grave blow to constitutionalism and the rule of law for the FCC to have issued a press release explicitly blaming Democrats, using the word multiple times both as part of the Baltimore County States Attorney’s title and them in general.

    It gives the impression that the FCC is nothing more than a partisan shill invoking, not general neutral American legal principles, but Republican partisan interests. It presents the FCC as an organ of, having allegiance to, and commanded by, not the American federal government, but solely the Republican Party, as if the Republican Party was indistinguishable from the American state.

    This aspect sounds like something a Nazified government board would say in 1930s Germany.

    This language probably does more to undermine the rule of law than if they had conducted the requested investigation. They purport to be acting soley as agents of and in the interests of the Republican Party.

    If I were a court, I would give an FCC that makes pronouncements like that zero deference. Only agents of the US federal government, with allegiance to it, are entitled to deference.

    1. Imagine a German tribunal in the 1930s, correctly finding a defendant guilty, repeatedly referring and then “Jewish criminal” and how these are the sorts of crimes Jews have been doing.

      I see no difference between the two.

      It simply doesn’t matter that the individual decision was correct. In talking about Democrats in general as malefactors, the FCC behaved no differently from a Nazi tribunal talking about Jews in general as malefactors. It acted, not as an agent of the State, but as an agency of the Party, using the tools available to it to strike at the Party’s enemies and make them into enemies of the State.

      It doesn’t matter that the tools available to it this one time happened to be legal tools.

      The Nazis often used legal tools. History suggests that those who fail to distinguish Party from State also don’t tend to be particularly scrupulous about distinguishing legal from illegal either.

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