Last week, Michigan State Senate senator and US Senate primary candidate Mallory McMorrow learned that the poll that nearly ended her campaign was made up. A group called Wedgewood Polling said that almost all of its midterm surveys were fabricated and called the whole thing “a social experiment.”
The fake June poll of the Michigan primary showed support for McMorrow in the single digits. When the poll was released, she claims donations dried up and reporters started calling to ask when she would drop out.
In response, Federal Communications Commission Chairman Brendan Carr posted a warning to broadcasters about a surge in “Fake Polls and Suppression Polls.” Carr called on broadcasters to remember that their licenses bar news distortion and broadcast hoaxes, and advised them to avoid airing polls that would violate those obligations.
As I wrote in March, the First Amendment has no fake news exception, even for broadcasters regulated by Carr’s agency. “Fake and suppression polls” would fall under that rule too. In United States v. Alvarez, the Supreme Court refused to carve out a general exception for false statements. A federal judge applied this precedent when he dismissed President Trump’s lawsuit targeting the Des Moines Register and pollster J. Ann Selzer for the 2024 Iowa Poll for “creating a false narrative” about the presidential election.
The rules that Carr has thinly threatened to wield against broadcasters don’t regulate “fake polls” either. The news distortion policy, enforced in just eight cases in the past 60 years, regulates cases where a broadcaster deliberately falsifies the news. The hoax rule targets broadcasters that knowingly disseminate false reports of crimes or catastrophes that cause “direct” public harm.
In 2020, when the advocacy group Free Press asked the FCC to punish stations over COVID claims, the agency refused, saying that “the Commission does not—and cannot and will not—act as a self-appointed, free-roving arbiter of truth in journalism.”
Put yourself in the shoes of a broadcaster eight days before an election. The FCC chairman, whose agency ordered every ABC-owned station into early license renewal less than 24 hours after the president demanded ABC fire Jimmy Kimmel, is now warning that some polls could put your license at risk. The rational business decision is to avoid the risk and air fewer polls; that is the exact chilling effect the First Amendment exists to prevent.
Even if the FCC does not take immediate action, “reminding” broadcasters that it wields power over them for reporting “fake” polls constitutes government jawboning—or informal pressure designed to chill speech with veiled threats of legal action.
That’s why the FCC’s latest move on this issue echoes a long line of cases. It started with Bantam Books v. Sullivan, where a Rhode Island commission didn’t directly ban books, but “reminded” book publishers what would happen if they kept selling “objectionable” books. Two years ago, in NRA v. Vullo, the Supreme Court unanimously reaffirmed that government officials cannot use regulatory leverage to coerce private parties into suppressing views disfavored by the government. Since September, shortly after President Trump explicitly called out “fake polls,” Chairman Carr has signaled that formal guidance on this issue may follow.
Notice how the FCC doesn’t actually need to fine anyone or revoke a single license to punish speech it doesn’t like. This is part of a larger pattern of the current administration that I call the First Amendment Tax. Rather than using constitutionally questionable methods to punish disfavored speech, government officials only need to make speech more expensive and risky. Chairman Carr’s latest warning is no different.
On November 3, 2026, Americans will vote. They have a right to know what their fellow Americans think—and even the flaws in how the media might report those opinions—without a federal regulator chilling the press and deciding what polling numbers are allowed.
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.