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. FCCÂ (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
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