David Inserra and Brent Skorup
Over the weekend, President Donald Trump accused several news organizations of being “Fake News Media” for “terrible reporting” on the Iran conflict, which was causing “damage” to the US. The president was clearly upset about reporting that claimed that multiple US aircraft had been “struck” or “destroyed,” while Trump stated that this was not the case.
But rather than just let the president vent over some news reporting that may have gotten some details wrong amidst the fog of war, Federal Communications Commission Chairman Brendan Carr jumped into the fray by issuing a threat. He stated:
Broadcasters that are running hoaxes and news distortions—also known as the fake news—have a chance now to correct course before their license renewals come up. The law is clear. Broadcasters must operate in the public interest, and they will lose their licenses if they do not.
To put this statement plainly, if the current administration perceives broadcast news reporting as misinformation, then those broadcast licenses are at risk. This episode should remind Americans that letting the government decide what information may be shared and what counts as truth is a dangerous game. And this is just the latest action that shows how the weaponization of the FCC’s current powers over speech poses a serious threat to the values of free expression.
Should the Government Police Misinformation?
The FCC claims the authority to police what it calls “news distortion” and “hoaxes” to address problems with media accuracy and bias. The agency has a longstanding policy that it may deny or revoke the license of a broadcaster that has engaged in “deliberate distortion” of news regarding a “significant event and not merely a minor or incidental aspect of the news report.”
Americans want to know they can “trust” the news, but that does not mean the government should dictate what is often a subjective call. That trust emerges in the media marketplace, not from a government making calls about what is true or false. This iterative process of critical inquiry is messy, but it is the best way we have for discovering truth. The government should play no role in determining what news can be reported.
Many news stories may start with limited information and present an incomplete picture, particularly in situations that are rapidly evolving, but when information is needed in real time. News leaves out, removes, or misses potentially important information or context as information comes in. Reporting can frame a story to give readers a certain impression. Many news stories mix opinion, fact, and speculation.
Americans can differ in their preferred media styles and in whom they trust for reporting. Each may find certain details more important to lead with than others. CNN and FOX News can report on the same news story but with dramatically different framing that leads their viewers to have different takeaways. But even if a media organization is biased and distorts its coverage, we allow a free press to report on the news as it sees fit and rely on others in civil society to challenge such reporting. If some media organizations get details wrong or report news that many Americans find misleading or biased, then other news organizations with better journalistic methods or ethics will take their place.
We already enjoy a vibrant media ecosystem that spans political viewpoints, areas of expertise, and organizational size and structure. Each of these media participants is subject to criticism, and it is through such debate that the truth usually emerges.
But what we don’t do is empower our government to be the arbiter of truth. A world where the government is allowed to dictate the only “correct” information, particularly during conflict, could lead to concerning censorship and control of information that are abhorrent to core freedoms of a free press and free expression.
The “Fog of War” and Evolving Stories
In the current case, media organizations are trying to piece together what is happening in the conflict with Iran. The fog of war prevents us from knowing what is going on in a constantly evolving set of events. Media organizations are receiving bits of information from their own reporters and other sources and trying to identify important developments and keep their audiences informed. As in any fast-moving situation, sources can be inaccurate, evidence is limited, and journalists can be imprecise or biased.
The government often has important information, including during times of conflict, that it can share, but it, too, must be subject to criticism and scrutiny. What the FCC is doing in this case is demanding that the details and narrative of reporting around the war with Iran be favorable to the administration, or else face the government ruining their businesses. That is an assault on the process of developing knowledge through debate and critique, and would usually be considered a clear violation of broadcasters’ right to free expression.
This isn’t the first time such government assaults on free expression have been justified during military conflict. In 1798, as the US faced the potential of war with France, the Federalists passed the Sedition Act, which made it illegal to publish “false, scandalous, or malicious writing” against the US government or public officials. Now, as then, this power was weaponized to crack down on dissenting voices and the press.
Ordinarily, such government pressure and censorship would be seen as a clear violation of free expression. Indeed, the Sedition Act was highly criticized as unconstitutional at the time and would certainly be held unconstitutional today. But broadcast regulation occupies a unique and unusually speech-restrictive corner of First Amendment law.
FCC Authority Over Licenses
It’s underappreciated—even among constitutional lawyers—how unfree broadcast media is. The FCC’s ability to police “news distortions” and “hoaxes” is not new, and every broadcast station owner knows that straying too far from received wisdom invites challenges during license renewal. In our digital age, it makes sense to question whether this scarcity doctrine still holds true. Still, we must consider how the law would play out under existing jurisprudence.
Broadcasters’ “junior varsity First Amendment rights” trace to a 1943 Supreme Court decision, NBC v. United States. In 1941, NBC challenged the FCC’s authority to regulate broadcasting in “the public interest,” arguing that the phrase represented an unconstitutional delegation of legislative power.
But in NBC v. United States (1943), as Chairman Carr points out, the Supreme Court disagreed and gave the FCC extraordinarily broad authority, holding that
The Act does not restrict the Commission merely to supervision of [broadcast] traffic. It puts upon the Commission the burden of determining the composition of that traffic.
Despite the wartime context of that case—FCC and other federal officials soon invoked the NBC decision to discreetly suppress reporting in the US of the Soviets’ war crimes—it remains good law to this day.
The FCC relied on NBC when it developed its notorious Fairness Doctrine in 1949. The Supreme Court later reinforced the framework in Red Lion Broadcasting v. FCC (1969), which upheld the Fairness Doctrine and held that broadcasters receive reduced First Amendment protection because of spectrum scarcity.
By the 1960s and 1970s, regulating radio and TV content consumed much of the FCC’s attention. Broadcast applicants were often required to submit a proposed programming schedule, and in 1970 alone, the FCC received more than 60,000 “fairness” complaints from politicians and members of the public.
Although aggressive content policing declined after the Reagan-era FCC stopped enforcing the Fairness Doctrine, the agency—under both Republican and Democratic leadership—has never abandoned its authority under NBC v. United States to consider programming in licensing decisions.
And while the FCC continues to claim this authority is narrow, even the threat of wielding it can jawbone broadcasters into changing or censoring their coverage. The DC Circuit held in Serafyn v. FCC (1998) that private parties can compel the FCC to investigate allegations of “news distortion.” The result is that the FCC effectively has a tool for policing what it deems misinformation.
Can Broadcasters Sue?
Why don’t broadcasters challenge this pressure in court?
One reason is that most broadcast owners have learned to live with junior-varsity First Amendment rights. Broadcasters and regulators alike often view a broadcast license much like a taxi medallion: a valuable privilege granted by the government that comes with severe regulatory conditions.
Chairman Carr suggested this view in his post: “The American people have subsidized broadcasters to the tune of billions of dollars by providing free access to the nation’s airwaves.”
Moreover, broadcasters who feel their speech rights are violated would face a skeptical judiciary. Lower courts would find it difficult to circumvent the broad language of NBC and Red Lion, so recognition of a full First Amendment right for broadcasters would likely have to come from the Supreme Court.
While the analysis should be straightforward for the originalists and textualists on the Court—“public interest” regulation of media represents an abridgement of free speech—much of communications law rests on NBC. Overturning it, the FCC would likely argue, would disrupt large areas of broadcast regulation.
Probably the party best able to assert a First Amendment violation is someone who creates programming, such as a late-night TV or talk radio host. But the Court in Murthy v. Missouri (2024)—about whether social media users had standing to sue the Biden administration for censorship—made it very difficult for a party that is not facing direct regulation to bring a First Amendment lawsuit.
Conclusion
The FCC should get out of the content regulation business. The public interest licensing framework has chilled speech for about a century. That’s why we petitioned the FCC—in 2017 and 2025—to rescind its news distortion policy, but to no avail. In the wake of the FCC’s pressure on stations over Jimmy Kimmel’s Charlie Kirk comments, White House technology advisor David Sacks on the All In podcast proposed that the government get rid of the public interest standard and “just auction off all the network spectrum .… Just have an auction. And we don’t need free public spectrum for broadcasters anymore.”
That would be a big improvement.
