President Trump’s push to expand the Federal Communications Commission’s authority over broadcast journalism “risks First Amendment conflicts and could backfire under future administrations.”
That’s the viewpoint of the nonresident Senior Fellow for Technology Policy Studies at the American Enterprise Institute.
In a column shared Thursday by the Washington, D.C., “think tank,” Clay Calvert pointed to statements made by the president prior to the start of his current term, in which he noted, “We have to straighten out the press. Our press is very corrupt, almost as corrupt as our elections.”
The statement was made in December, six weeks after then-candidate Trump filed a gargantuan lawsuit against CBS for alleged news distortion — a matter that has created a bitterly divided FCC, which is now investigating a matter the Rosenworcel Commission had dismissed, only to see Brendan Carr reinstate a complaint filed against the network by a conservative public interest organization.
For Calvert, the lawsuit against CBS “pivots on a more nebulous notion — the public interest.”
In particular, Calvert says Trump’s complaint quotes a Commission statement that “rigging or slanting the news is a most heinous act against the public interest.”
Indeed, all over-the-air broadcast television and radio stations are obligated by a federal statute to serve “the public interest, convenience, and necessity.” As the FCC notes, facilitating the public interest is an obligation stations take on “in exchange for obtaining a valuable license to operate a broadcast station using the public airwaves.”
Calvert comments, “Trump believes he knows best what the public interest is, and he wants to dictate what it entails. He has vowed to “bring the independent regulatory agencies, such as the FCC … back under Presidential authority, as the Constitution demands.” Furthermore, Trump has called for revoking the licenses of CBS stations and those of other networks airing stories he deems objectionable.
He then points fingers at Carr, who stated during a December interview that “we need to sort of reinvigorate the FCC’s approach” to matters like the news distortion rule. Carr added that “there is something that’s different about broadcasters … where you have to operate in the public interest. So right now, all I’m saying is maybe we should start a rulemaking to take a look at what that means.”
Calvert’s take? “What the public interest ‘means’ generally distills to two competing conceptions. On the one hand, the public interest is whatever the public is interested in. It’s a laissez-faire, free-enterprise approach that lets marketplace forces (audience size and demographics) determine the public interest. It is represented by the FCC’s decision to stop enforcing the Fairness Doctrine during President Ronald Reagan’s second term.”
Conversely, he says, “the Fairness Doctrine embodies an understanding of the public interest under which the public interest is whatever the government feels the public needs to know.”
This all leads Calvert to a fundamental question: Is it is wise public policy to expand the FCC’s public interest authority, perhaps via the broadcast news distortion rule, to more closely control the editorial decisions of over-the-air broadcast journalists?
“More provocatively put, should a government agency—one President Trump wants to put under his direct control, as noted earlier—be granted expansive authority to pull the plug (via license revocations) on stations due to their (in the government’s determination) distorted journalism?” Calvert wonders.
There’s one “glaring problem,” as recently noted by AEI colleague Daniel Lyons. As he recently wrote, “an FCC proceeding to punish broadcasters for their editorial decisions is likely to crash against the rocks of the First Amendment, costing the agency significant political capital for no lasting purpose.”
Calvert also quotes James Madison, the author of the First Amendment, who he believes perhaps put it best in 1800, long before broadcasting existed:
Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true, than in that of the press. It has accordingly been decided by the practice of the states, that it is better to leave a few of its noxious branches, to their luxuriant growth, than by pruning them away, to injure the vigor of those yielding the proper fruits.
Calvert concludes, “It’s pro-press logic and language that the Supreme Court approvingly quoted more than 90 years ago in Near v. Minnesota when concluding that prior restraints on the press are presumptively unconstitutional. Ultimately, Trump should remember that after he leaves office—either immediately or somewhere down the road—a Democrat surely will occupy the White House and control a three-person majority on the FCC. The same power Trump now seeks to corral broadcast journalism then will be deployed against Republican-tilting news organizations.”
Clay Calvert is a nonresident senior fellow in technology policy studies at the American Enterprise Institute. He is also a professor of law emeritus at the Levin College of Law and Brechner Eminent Scholar Emeritus at the College of Journalism and Communications, both at the University of Florida. Considered one of the foremost experts on First Amendment law, Dr. Calvert is often a source in writings about the First Amendment and freedom of expression.
