The Volokh Conspiracy
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The FCC Chair's Unprecedented, and Constitutionally Problematic, Response to Jimmy Kimmel
And Trump's much more extreme one. [EV writes: I bumped this post from yesterday, because it struck me as especially timely and substantively valuable.]
On Monday Jimmy Kimmel said:
We hit some new lows over the weekend with the MAGA gang desperately trying to characterize this kid who murdered Charlie Kirk as anything other than one of them and doing everything they can to score political points from it. In between the finger-pointing, there was, uh, grieving on Friday − the White House flew the flags at half-staff, which got some criticism, but on a human level, you can see how hard the president is taking this. Yes, he's at the fourth stage of grief: construction. Demolition, construction. This is not how an adult grieves the murder of someone he called a friend; this is how a four-year-old mourns a goldfish, OK? And it didn't just happen once. And then we installed the most beautiful chandelier. Responses you wouldn't believe. Who thinks like that, and why are we building a $200 million chandelier in the White House? Is it possible that he's doing it intentionally so he can be bad about that instead of the Jeffrey Epstein list?
Yesterday, FCC Chair Brendan Carr said:
Public interest means you can't be running a narrow partisan circus and still meeting your public interest obligations. That means you can't be engaging in a pattern of news distortion.
It appears to be some of the sickest conduct possible. In some quarters, there's a very concerted effort to try to lie to the American people about the nature of one of the most significant, newsworthy, public interest acts that we've seen in a long time.
Frankly, when you see stuff like this — I mean, we can do this the easy way or the hard way. These companies can find ways to change conduct and take action, frankly, on Kimmel, or there's going to be additional work for the F.C.C. ahead.
A few hours after Carr's remarks, ABC indefinitely suspended Kimmel's show.
And this evening, Donald Trump said of broadcasters:
They give me only bad publicity or press. I mean, they're getting a license. I would think maybe their license should be taken away.
What Is the FCC's Statutory Authority?
47 U.S.C. 301 grants the FCC control over the radio spectrum and directs the FCC to grant licenses to use specified frequencies for a specified number of years. So wireless broadband providers, satellite television providers, local broadcast stations, etc. must obtain FCC licenses. Licenses are generally very valuable (broadband auctions for initial licenses have yielded more than $200 billion to the Treasury), and a licensee really wants to be able to renew its license and to sell it to someone else who will then be able to renew it (otherwise, the buyer would not pay very much). This creates two principal levers the FCC uses to control licensees.
First, under 47 U.S.C. 310 the FCC must approve any proposed transfer of a license as long as it finds that "the public interest, convenience, and necessity will be served thereby." This was the source of the FCC's leverage with respect to the CBS/Skydance transaction: CBS wanted to transfer the licenses for the local TV stations it owned, and the FCC had to approve. As readers know, the FCC did approve that transfer after (in the words of the FCC press release) Skydance committed not to have any DEI policies, to "ensur[e] that the new company's array of news and entertainment programming will embody a diversity of viewpoints across the political and ideological spectrum," and to invest new capital. And of course the FCC approved the transfer shortly after Stephen Colbert's show was cancelled – at a minimum creating an appearance problem (or an opportunity, for those who want future transferees to fear the FCC).
The second key source of authority is 47 U.S.C. 309, which specifies that the FCC can similarly deny renewal of a license if the FCC does not find that the licensee "has served the public interest, convenience, and necessity."
Is This Consistent with the First Amendment?
At this point a key question may occur to you: how can it be consistent with the First Amendment for any FCC renewal or transfer decisions to turn in any way on the content, much less the viewpoint, of a licensee's speech? Content-based regulation of cable television providers (whose systems often require rights-of-way from a government) or websites that transmit content via wireless frequencies would be subject to strict scrutiny, which is nearly always fatal, and viewpoint-based regulation is always invalidated. Indeed, even without the use of any rights-of-way or frequencies (which the Court never mentioned in its cable and internet cases), the Court would apply strict scrutiny. (And by the way, the Court has invalidated the regulation of knowingly false speech -- indeed, particularly offensive false speech, in the form of lying about receiving military medals.)
So how can the FCC look at content under sections 309 and 310?
The answer in the case law has been that in FCC v. Pacifica Foundation the Supreme Court held that broadcasting is subject to less rigorous First Amendment scrutiny primarily because it is uniquely pervasive, and secondarily because it is uniquely accessible to children. And in Red Lion Broadcasting Co. v. FCC, the Court allowed mandates that broadcasters host speech the government deemed valuable, based largely on spectrum scarcity. (Red Lion does not suggest that scarcity justifies restricting harmful speech, but rather justifies requiring broadcasters to air valuable speech.)
Denying a renewal or transfer based on viewpoint goes beyond Pacifica and Red Lion, and there is a reasonable argument that neither decision extends that far. Even if they did, it would not follow that the Supreme Court would permit such actions.
Pacifica and Red Lion have been subject to persuasive criticism for years. As to Pacifica, broadcasting is just another medium of communication. The government powerfully argued in cases involving cable television, the internet, and telephones, (all of which Congress chose to regulate) that those other media are just as pervasive, and just as available to children, as broadcasting, and in each case the Supreme Court rejected the government's argument and invalidated the regulation under strict scrutiny, making it harder and harder to defend Pacifica.
Regarding Red Lion, to quote from my Internet & Telecommunications Regulation casebook, "almost all resources —e.g., wires, labor, steel, land, and investment capital —are scarce in that (a) if given away at no charge people would request more of them than is available and (b) if we could create more of them, that additional increment could also be put to productive use." Indeed, in some respects radio frequencies are less scarce than land: the range of usable frequencies has increased more than 10-fold in the last 50 years – as if we had discovered 10 new usable Earths. And the Court declined the opportunity to apply Red Lion in later cases like Miami Herald v. Tornillo (newspapers) and Moody v. NetChoice (social media), making it harder and harder to defend Red Lion.
As Justice Thomas noted in FCC v. Fox,
Red Lion and Pacifica were unconvincing when they were issued, and the passage of time has only increased doubt regarding their continued validity. The text of the First Amendment makes no distinctions among print, broadcast, and cable media, but we have done so in these cases.[Internal quotation marks omitted.]
FCC commissioners and staff are aware of the First Amendment problems with content-based FCC decisionmaking, and the broader governance concerns raised when government wields so much power. Indeed, the FCC repealed the Fairness Doctrine (whose legal hook was the threat of non-renewal) and later (after much prodding from the D.C. Circuit) the Personal Attack and Political Editorial rules (which were similarly predicated on the threat of non-renewal) on First Amendment grounds. And see the final block quote below. Many people (myself included) expect that if the Supreme Court squarely confronted Pacifica and/or Red Lion, it would overrule them.
But the costs for a licensee to challenge a non-renewal or transfer denial are very high. The Court has made it clear that only it can overrule its cases, so a licensee would face months if not years of delay on a transfer (often fatal to transfer deals) or on a renewal, with no guarantee of success. The obvious incentive is for the private party to do what the government wants. That is why Trump had leverage over ABC, leading it to settle a very weak lawsuit. That's how things work in lots of countries we don't want to emulate.
Would This Be an Ordinary Application of FCC Standards?
First things first: Trump said the quiet part out loud tonight – he thinks that broadcasters have been too critical of him and thus maybe their licenses should be taken away. That has never happened, and here's hoping it never will.
Now to Carr's stated focus – news distortion. First, it has been applied only to news shows (which of course Kimmel's show is not). Second, the FCC has created guardrails around it that seem to exclude Kimmel's monologue. As the FCC stated in rejecting a news distortion complaint against a Fox television station in 2007:
In evaluating whether an allegation of news distortion impacts the licensee's ability to serve the public interest, the Commission analyzes both the "substantiality" and "materiality" of the allegation. An allegation is "material" only if the licensee itself is said to have participated in, directed, or at least acquiesced in a pattern of news distortion. An allegation of news distortion is "substantial" if it meets two conditions: it is deliberately intended to slant or mislead; and it involves a significant event and not merely a minor or incidental aspect of the news report. It is sufficient for a petitioner to raise a "substantial and material question of fact" as to intent, and the Commission cannot require a petitioner to demonstrate "intent." However, the Commission determines in the first instance whether the evidence submitted raises a substantial question of fact.
Section 326 of the Act prohibits the Commission from censoring radio communications, and the First Amendment to the Constitution strictly limits the Commission's authority to interfere with the programming decisions of licensees. In light of these limitations, and because journalistic or editorial discretion in the presentation of news and public information is the core concept of the First Amendment's Free Press guarantee, "the Commission's policy makes its investigation of an allegation of news distortion 'extremely limited in scope.'" In showing an intent to distort, "[i]t is not enough to dispute the accuracy of a news report…or to question the legitimate editorial decisions of the broadcaster." Allegations of deliberate distortion must be supported by extrinsic evidence "such as written or oral instructions from station management, outtakes, or evidence of bribery." With respect to a report's accuracy in particular, the Commission has stated that it possesses "neither the expertise nor the desire to look over the shoulder of broadcast journalists and inquire why a particular piece of information was reported or not reported." To do otherwise "would involve the Commission deeply and improperly in the journalistic functions of broadcasters."
In the Matter of TVT License, Inc., 22 F.C.C. Rcd. 13591, 13592 (2007).
Third, the FCC has found distortion in only eight cases since 1969, and just once since 1982. Fourth, in none of those cases did the FCC revoke the license based on the distortion. A representative example involved a "letter of admonishment" that had no impact on the licensee (and proved to have no impact on its future renewals) despite the FCC
finding "repeated instances of deceptive programming broadcast by the station" in five different news programs over a two-year period. Deceptions included staff members concocting letters and phone calls that were presented on the air as having been issued from viewers, supposedly spontaneous questions by members of studio audiences which were prepared by staff members and fictitious interviews with various people misidentified as members of the public.
The only finding of news distortion since 1982 was a similar letter of admonishment in 1993 for NBC
staging a segment of a "Dateline NBC" report on unsafe gas tanks in General Motors trucks. The report showed video of what it called an "unscientific" test crash in which a GM truck exploded into flames after being hit from the side. GM's investigation found that NBC producers had rigged the test by attaching incendiary devices to the truck's gas tank.
The most recent attempts at news distortions were A) a claim, piggybacking on the state court determination in Dominion Voting System's suit against Fox News, that a Fox television station disseminated false statements about Dominion, and B) claims that CBS distorted the news by airing different footage of Kamala Harris's response to the same question on 60 Minutes and Face the Nation. The FCC rejected all these challenges shortly before Trump took office without holding any hearings, as it should have. It began all the orders by stating:
The freedom of speech and the press is enshrined in the First Amendment of the United States Constitution, and is necessary to promote the vigorous dialogue necessary in a representative democracy. When the government — including Congress, the Courts, and the Executive Branch (and States and local government) — seeks to curtail the freedom of expression on ""matters of valid public interest," doing so implicates the very heart of speech that the First Amendment is meant to protect. Accordingly, for nearly a century since the Commission's inception in 1934, the Communications Act has expressly prohibited the Commission from engaging in the "power of censorship," or issuing regulations or conditions that "interfere with the right of free speech." It has instead plainly 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." Moreover, "the Commission does not—and cannot and will not—act as a self-appointed, free-roving arbiter of truth in journalism."
In the Matter of Preserving the First Amendment, Application of Fox Television Stations, LLC for Renewal of License of WTXF-TV, Philadelphia, Pa (Jan. 16, 2025).
(By the way, that last quotation was from a 2020 order rejecting a challenge to the airing of allegedly false statements about Covid-19 by President Trump and others.)
The only remotely analogous FCC action was Carr's decision, upon becoming chair, to reopen the challenges to CBS's handling of Kamala Harris's answers (but not to Fox's statements about Dominion). But it would take chutzpah for Carr to claim that his Kimmel comments are not unprecedented simply because he did something roughly analogous nine months ago.
The bottom line: treating Kimmel's statement as news distortion would be unprecedented. Indeed, that understates the point. The idea that his statement resembles anything the FCC has punished as news distortion is somewhere between strained and frivolous.
[Edit to make explicit that the first two limits on news distortion knock out application to Kimmel's monologue.]
