License to Chill: The FCC's Unconstitutional Threat to Broadcast News
The First Amendment does not have a "fake news" exception, and it never has.
On Saturday, Federal Communications Commission Chairman Brendan Carr posted a warning to broadcasters who were running what he called “hoaxes and news distortions” about the Iran war, arguing they should 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,” he added.
There’s just one small issue with this: the First Amendment does not have a fake news exception, and it never has.
The government cannot threaten to strip a broadcaster of its license because those in power dislike how a story was framed, what words a reporter chose, or whether a headline matched the administration’s preferred account of events. Even false speech is protected under the First Amendment, as the Supreme Court has repeatedly confirmed. The cure for journalism one finds “bad” is more speech, not a government official deciding whose reporting is fit to air.
Invoking the “public interest” standard does not cure the chairman’s First Amendment problem. The Supreme Court has been explicit that the public interest standard in broadcast regulation must be understood through the lens of the First Amendment, which must inform and give shape to how Congress and the FCC exercise regulatory power over broadcasting. Retaliating against news outlets because the President dislikes their coverage of an ongoing war is not a public interest rationale.
What if in 2003 the FCC threatened broadcasters’ licenses for not favorable coverage of President Bush’s justification for the war in Iraq? I don’t have a time machine, but I do know that the outrage would be bipartisan. In 2020, the organization Free Press filed a petition to fine stations for alleged COVID misinformation under the related broadcast hoax rule. In a response, the General Counsel of the FCC rejected the request, explaining “...the Commission does not—and cannot and will not—act as a self- appointed, free-roving arbiter of truth in journalism.”
Carr has pointed to the agency’s longstanding news-distortion policy as the basis for his authority to make these threats. That policy is itself on constitutionally very shaky grounds and has been used rarely in the past 60 years. The FCC enforced it in just eight cases between 1969 and 2019, and those cases typically involved fabrications of news events, not editorial judgments about what to emphasize or how to describe a situation. Carr himself said in 2019, “Should the government censor speech it doesn’t like? Of course not. The FCC does not have a roving mandate to police speech in the name of the ‘public interest.’”
It’s clear that the Chairman is aware of the First Amendment’s obstacle. But statements like the one from last week are not there for legal follow-through; they are there for the chilling effect.
When a government official tells broadcast stations to correct their coverage or face consequences, owners of those stations have to decide if they want to continue reporting in a way that will please the government or take the very expensive legal and reputational gamble of going against the government to maintain their ability to operate. It’s important to remember that the government does not need to revoke a single license to change what gets reported, how a story gets framed, or whether a producer decides a particular piece is worth the headache. They just need to flex their muscles and point the editorial winds in the direction they want them to blow.
That is why the Supreme Court, case after case, has held that government pressure designed to alter private speech raises the same constitutional concerns as outright censorship. Most recently, in National Rifle Association v. Vullo, the Court ruled, “Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors.” A regulatory chairman posting public warnings to news organizations the day after the president complains about their war coverage fits that description with uncomfortable precision.
Carr has suggested that broadcasters who do not like these conditions are free to move to streaming, which the FCC does not regulate. That is a remarkable concession since he is acknowledging that the government can use the broadcast licensing process to extract editorial compliance that it could never demand of any other publisher. The scarcity rationale (limited airwaves that require government-granted licenses and allocation) that once justified greater government involvement in broadcast content has been eroding in the courts for decades and can no longer bear the weight being placed on it here.
The First Amendment does not exist to protect popular speech or coverage that aligns with government narratives. It was written precisely for moments like this one, when officials with power over the press are unhappy with what the press is reporting.
The broadcasters covering this war are doing their jobs. Is Chairman Carr doing his?
Ashkhen Kazaryan is a Senior Legal Fellow at The Future of Free Speech, where she leads initiatives to protect free expression and shape policies that uphold the First Amendment in the digital age.