Presidents and their top officials have long chafed at criticisms that undermine public support for war, along with unfavorable media coverage that complicates their foreign policy aims. We are a long way, fortunately, from the Wilson administration’s mass prosecution of hundreds of newspaper editors and antiwar activists or the FDR administration’s “voluntary censorship” system that threatened newspapers with sedition charges and choked off dissenting outlets by suspending their mailing privileges. But presidents and other officials have never stopped looking for subtler tools to chill speech—and broadcast licensing has been among the most reliable.
That brings us to FCC Chairman Carr’s statements yesterday about a CNN story about the war in Iran:
More outrageous conduct from CNN. Fake news is bad enough for the country, but pushing out a hoax headline in such a sensitive national security moment as this requires accountability. Iran put out an official statement that simply cannot be squared with the one CNN’s false headline attributes to them. Time for change at CNN.
Chairman Carr’s call for “accountability” and “change at CNN” appears intended to pressure a prominent news organization to alter its coverage of the war with Iran. But the role of a media regulator is not to render verdicts on news coverage. Even inaccurate reporting—which CNN disputes in this case—is protected by the First Amendment; that is precisely the point of the First Amendment.
It must be pointed out that while the FCC has no direct authority over CNN programming and though CNN’s current parent, Warner Bros. Discovery, owns no broadcast television stations, there is a pending acquisition bid for Warner Bros. Discovery by Paramount Skydance, and Paramount does own CBS and some CBS television stations, all of which require FCC licenses.
It is likely that the prospect of this regulatory hook will catch the attention of media executives. While FCC authority may seem attenuated in this context, we know from email correspondence between Biden administration officials and Facebook executives that media distributors are sensitive to even indirect government pressure from powerful regulators like the FCC.
But as a matter of both sound public policy and constitutional law, the FCC shouldn’t have this power. The Supreme Court, during World War II, in NBC v. United States (1943), turned aside a nondelegation challenge to the FCC’s public-interest regulations governing programming—a wartime decision whose consequences have outlasted the war by eight decades. To this day, the FCC regulates broadcast programming and transactions involving broadcasters.
Since many large companies have a mix of lightly regulated lines of business (like cable TV programming and broadband) and heavily regulated ones (like broadcast TV stations or cellular spectrum), and because the Communications Act places the burden on transacting parties to demonstrate “public interest” benefits, the FCC has immense indirect power even over companies it does not formally regulate.
As I wrote with my then-colleague at Mercatus, Christopher Koopman, years ago:
the FCC, through its public interest standard, faces few formal legal constraints on growing its power. Continuing to allow the FCC’s broad discretion to approve or deny transactions under a public interest standard violates basic rule of law norms and poses significant First Amendment problems.
It remains my view that it should be substantially easier to bring First Amendment challenges to the FCC’s public and private attempts to shape the speech of regulated companies.
The pattern Chairman Carr is following is not new—the Kennedy administration used the Fairness Doctrine to drive conservative broadcasters off of stations; Nixon’s aide Chuck Colson explicitly threatened to revoke the Washington Post Company’s broadcast licenses; and the Obama FCC exacted programming conditions and net neutrality obligations from regulated cable and telecom firms during mergers.
The solution is not to wait for more restrained regulators. The real fix is structural: Congress should strip the FCC of the vague public interest authority that makes these threats possible, or the Supreme Court should revive the nondelegation doctrine and restore the First Amendment rights of broadcasters that NBC v. United States diminished eight decades ago.
