The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
FCC as Truth Police / Racism Police / Sowing Discord Police
Thursday, FCC Chair Jessica Rozenworcel denounced Trump's calls for the FCC to strip CBS of its license (and to investigate ABC) for alleged bias against him. Seven years ago, then-Chair Ajit Pai likewise rejected then-President Trump's calls for the FCC to strip NBC of its license for supposed "fake news."
The FCC had also been asked to deny renewal to a FOX Philadelphia affiliate on the grounds that it "aired 'false information about election fraud' about the 2020 presidential election and arguing it sowed discord and contributed 'to harmful and dangerous acts on January 6' at the U.S. Capitol." That matter is pending, though a month ago FCC Commissioner Nathan Simington urged the FCC to close it.
Back in 2014, the FCC rejected the claim that broadcasters that referred to the Washington Redskins (the team name at the time) should lose their licenses. Marilyn Mosby, then the Baltimore State's Attorney (since convicted of perjury and mortgage fraud), asked the FCC to investigate a local TV station on the theory that its coverage of her was "blatantly slanted, dishonest, misleading, racist, and extremely dangerous"; Commissioner Brendan Carr put out a statement condemning the complaint, and I haven't seen any indication that the FCC has taken any action on it.
The law in this area is, regrettably, complicated. The Supreme Court has broadly protected the right of newspapers, magazines, book authors, filmmakers, cable companies, Internet companies, and others to speak, without the fear that a government agency will strip them of the right to speak based on the content of their speech. But the rule for broadcast television and radio has been different. Since the 1920s, the government has required a license to broadcast; part of the rationale was to prevent stations from interfering with each other using the same frequency, but once the licenses were given, the government has used that as a means to impose "public interest" requirements on licensees. Here is an excerpt on this from Justice White's opinion in Red Lion Broadcasting Co. v. FCC (1969):
Where there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcast comparable to the right of every individual to speak, write, or publish. If 100 persons want broadcast licenses but there are only 10 frequencies to allocate, all of them may have the same "right" to a license; but if there is to be any effective communication by radio, only a few can be licensed and the rest must be barred from the airwaves. It would be strange if the First Amendment, aimed at protecting and furthering communications, prevented the Government from making radio communication possible by requiring licenses to broadcast and by limiting the number of licenses so as not to overcrowd the spectrum.
This has been the consistent view of the Court. Congress unquestionably has the power to grant and deny licenses and to eliminate existing stations. No one has a First Amendment right to a license or to monopolize a radio frequency; to deny a station license because "the public interest" requires it "is not a denial of free speech."
By the same token, as far as the First Amendment is concerned those who are licensed stand no better than those to whom licenses are refused. A license permits broadcasting, but the licensee has no constitutional right to be the one who holds the license or to monopolize a radio frequency to the exclusion of his fellow citizens. There is nothing in the First Amendment which prevents the Government from requiring a licensee to share his frequency with others and to conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves.
Justice White used this argument to uphold (1) the Fairness Doctrine, which generally required "that discussion of public issues be presented on broadcast stations, and that each side of those issues must be given fair coverage," and (2) the Personal Attack Rule, which more specifically required that, "When, during the presentation of views on a controversial issue of public importance, an attack is made upon the honesty, character, integrity or like personal qualities of an identified person or group," the target be given "a reasonable opportunity to respond." The Court has also held, in FCC v. Pacifica Foundation (1978), that because broadcasting reached into the home and was unusually accessible to children, the government could ban the "Seven Dirty Words" on radio and television (though it couldn't do so on the public street). Lower courts have likewise allowed some policing by the FCC of alleged "distortion," see, e.g., Serafyn v. FCC (D.C. Cir. 1998). And the FCC has a specific "broadcast hoaxes rules" barring the publication of knowingly "false information concerning a crime or a catastrophe," if the information foreseeably "cause[s] substantial public harm."
Fortunately, in recent years the FCC has recognized the dangers of policing speech this way, whether in the service of trying to restrict disfavored views (such as alleged racism) or supposed misinformation. The case involving the Washington Redskins is one example; the FCC there recognized that the Court's decision upholding the viewpoint-neutral restrictions on sex- and excretion-related vulgarities in Pacifica couldn't be extended to allegedly bigoted words, which would be punished precisely because of their supposed viewpoints. The FCC commissioners' statements quoted above support this as well, as does the FCC's 2020 decision related to the broadcast hoaxes rule:
[T]he 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."
On the Court, Justices Thomas and Ginsburg had also suggested that it was unsound to offer lesser First Amendment protection to broadcasting; I expect that, if the issue were to come before the Court today, Red Lion and Pacifica would at least be sharply limited and perhaps overruled altogether.
Whether or not some narrow, clearly-defined, and viewpoint-neutral restrictions or access compulsions (such as the Personal Attack Rule) should be upheld for broadcasters, I think that the FCC can't be trusted to police supposed "misinformation" on radio and television any more than some Federal Newspaper Commission could be trusted to police supposed misinformation in newspapers. The same is true, of course, for state governments as well as the federal government. For all the dangers posed by falsehoods about politics, science, and the like—and I think those dangers are quite real—the dangers of the government policing such falsehoods are greater still. To quote Justice Alito's dissent for three Justices in U.S. v. Alvarez (2012) (which was agreed with by the two-Justice concurrence, and as to which the plurality raised no objection),
The point is not that there is no such thing as truth or falsity in these areas or that the truth is always impossible to ascertain, but rather that it is perilous to permit the state to be the arbiter of truth.
