In response to controversial efforts by the Federal Communications Commission to investigate broadcasters for airing biased news coverage, a group of seven former commissioners and chairs, plus additional senior-level former staff, have submitted a sternly worded petition to the agency slamming its attempts “to mold the speech of private broadcasters to the FCC’s own view of what is correct.”
The petition asks the agency to rescind the news distortion policy, which has “significantly chilled and otherwise altered the content of broadcasters’ speech, undermining First Amendment values.”
The petition is in response to several highly controversial investigations by the FCC into allegations of “biased” news coverage by ABC, CBS and NBC of President Trump and comments by FCC Chair Brendan Carr that the regulator has the power to punish broadcasters and potentially even remove broadcast licenses from stations violating “public interest” and “news distortion” rules.
The petitioners are a bipartisan group of former FCC chairs, commissioners, and other senior leaders who served the agency between 1981 and 2017. Signing on were Andrew C. Barrett, Rachelle B. Chong, Ervin S. Duggan, Mark S. Fowler, Dennis R. Patrick, Alfred C. Sikes, Thomas E. Wheeler, Christopher J. Wright, Kathryn C. Brown, Jerald N. Fritz and Peter Pitsch. The petitions were represented by Protect Democracy, TechFreedom, Andrew Jay Schwartzman and Gigi Sohn.
That controversy became particularly heated after Carr used the news distortion policy to accuse ABC and Disney of news distortion and threaten ABC affiliates’ licenses for airing controversial comments by late night host Jimmy Kimmel’s regarding the assassination of conservative activist Charlie Kirk.
The news distortion policy also provided the basis earlier this year for threats against CBS News during the lengthy FCC review of the Paramount-Skydance merger.
Skydance won approval for the merger after it agreed to end Paramount’s DEI efforts, paid $16 million to settle a libel suit filed by President Donald Trump and promised to name an ombudsman to ensure unbiased coverage at CBS News.
"As the Supreme Court has made clear, the government has no legitimate role in un-biasing or balancing the media," said Fowler, the FCC chair from 1981-87 under Republican President Ronald Reagan. "The news distortion policy allows the government to threaten censorship of speech it doesn't like; it cannot stand.”
“The Commission should focus on ensuring that all Americans are connected and have access to information and ideas — not imposing on broadcasters its vision of what presentation of the news is correct,” added Wheeler, who served as chair under Democratic President Barack Obama from 2013-17 and also joined in the petition. “The news distortion policy is being used by the current FCC leadership as a tool of speech coercion and that abuse will not stop until the agency repeals it.”
“The FCC has no business policing free speech,” said Conor Gaffney, counsel at Protect Democracy, a not-for-profit that works to combat authoritarian threats. “It is not for the federal government to decide what is ‘biased’ any more than it is for the government to decide what is ‘news.’ The Supreme Court has ruled time and again that policing speech is not the government’s job.”
“Carr’s threats have worked despite their unconstitutionality because the FCC has extraordinarily vast leverage over broadcasters,” added Berin Szóka, president of TechFreedom, a think tank dedicated to defending free speech, the Constitution and the rule of law. “Carr so clearly abused that leverage that even his fellow Republican, Sen. Ted Cruz, compared his tactics to a ‘mafioso, … right out of Goodfellas.’ Critical speech has been, and will be, chilled. Disney bent, even if it didn’t break. Fearing retaliation, many comedians and journalists will self-censor, or their corporate employers will muzzle them. The news distortion policy is too dangerous a weapon to entrust to any Chair.”
The petition argues that the FCC’s crackdown on news distortion violated longstanding free speech precedents and Supreme Court rulings while creating a climate of fear designed to chill free speech and reduce criticism of the Trump administration.
“The petitioners request that the FCC repeal the news distortion policy in full,” the petition said. “In Moody v. NetChoice, LLC, the Supreme Court, applying the First Amendment, reaffirmed that the government has no role in ‘un-biasing’ the media. In direct contradiction to that decision, the news distortion policy seeks to mold the speech of private broadcasters to the FCC’s own view of what is correct, complete, and accurate news. The First Amendment forbids the government from embarking on such a project.
“Furthermore, the application of the news distortion policy is constitutionally problematic,” the petition continued. “The vast scope and vague language of the news distortion policy cast an omnipresent shadow over broadcasters’ freedom of expression while leaving the policy open to partisan weaponization. Wielding the news distortion policy, the FCC has already opened or threatened to open investigations against private broadcasters due to disagreements with editorial decisions or statements made in a comedic monologue. Even if the FCC never tries to take enforcement action in these cases, the specter of government interference alone chills broadcasters’ speech and suppresses their message.”
“Because the FCC has no legitimate interest in correcting or punishing what it considers to be slanted news coverage, the news distortion policy lacks a meaningful function,” the petition concluded. “Over a period of 60 years, the FCC only enforced the policy eight times, typically in cases involving an intentional hoax. However, such cases are now covered by the FCC’s broadcast hoax role, rendering the news distortion policy a vestigial organ. In light of its redundancy and obsolescence, as well as its actively harmful effects, amply demonstrated as of late, the petitioners respectfully request the repeal of the news distortion policy.”
Both Carr and Commissioner Olivia Trusty, who make up the FCC’s Republican majority, argue Congress clearly gave the commission the power to enforce public-interest standards on stations because they receive licenses to use scarce spectrum.
The Nov. 13 petition by seven FCC chairs and commissioners follows comments made earlier this year by five former FCC chairs and commissioners in opposition to the onging investigation of CBS News for “news distortion.” They accused the FCC of acting as the “White House’s personal censor.”
The full petition can be found here.
