Liberals’ Fantasies About Restricting Free Speech.

Liberals’ Fantasies About Restricting Free Speech.

Jim Geraghty

National Review   January 19, 2021

Today is the last full day of the Trump presidency. On the menu today, why a “reinvigorated” Federal Communications Commission couldn’t apply the Fairness Doctrine to cable news the way Washington Post columnist Max Boot yearns to see; the U.S. State Department declares it has “reason to believe that several researchers inside the Wuhan Institute of Virology became sick in autumn 2019, before the first identified case of the outbreak, with symptoms consistent with both COVID-19 and common seasonal illnesses,” and why canceling the Keystone XL Pipeline doesn’t even make sense by the Democrats’ own criteria.

Never Trump Columnist Forgets How the FCC and First Amendment Work

Max Boot, writing in the Washington Post, calls for greater federal government restrictions on what Fox News can and cannot say:

While we should expect better behavior from media executives, we shouldn’t count on it. CNN (where I’m a global affairs analyst) notes that the United Kingdom doesn’t have its own version of Fox News, because it has a government regulator that metes out hefty fines to broadcasters that violate minimal standards of impartiality and accuracy. The United States hasn’t had that since the Federal Communications Commission stopped enforcing the “fairness” doctrine in the 1980s. As president, Biden needs to reinvigorate the FCC. Or else the terrorism we saw on Jan. 6 may be only the beginning, rather than the end, of the plot against America.

This is what happens when a columnist writes with great passion and doesn’t bother to look up the specifics of what he’s writing about.

Fox News, Fox Business News, One America Network, and NewsMax TV are cable stations and do not broadcast over public airwaves. The Federal Communications Commission has little authority over cable channels. (The FCC might have a little more authority over Fox News Sunday and other news programs that carried by the Fox Broadcasting Company.) The Fairness Doctrine applied to broadcasters who used public airwaves. The FCC commissioners decided to revoke the Fairness Doctrine in 1987, a unanimous 4–0 decision involving two Republican commissioners and two Democratic commissioners. The FCC counsel concluded that the rule had become counterproductive, as broadcasters “had shied away from covering controversial issues in news, documentaries and editorial advertisements.”

After the decision, Floyd Abrams, a lawyer who specializes in First Amendment cases, told the New York Times, “This is the beginning of the end of Governmental control over the content of what appears on television.”

In short, Boot wants to reinstate government control over the content of what appears on television.

Again, at the time, this applied to broadcast networks because they used the public spectrum to get their signal from their station or broadcast tower to your antennae. Cable- and satellite-television providers didn’t use public airwaves, so the FCC had less authority to regulate them. Cable news existed at the time — CNN was founded in 1980 — but no one paid much attention to that network until Baby Jessica fell down the well.

Since then, the FCC has stayed far away from anything resembling Boot’s vision of an authoritative judge, levying fines on news organizations that don’t meet federal regulators’ notions of what constitutes impartiality or accuracy. Furthermore, in the agency’s own words, “the FCC’s authority to respond to these complaints [of bias, inaccuracy, or poor coverage] is narrow in scope, and the agency is prohibited by law from engaging in censorship or infringing on First Amendment rights of the press. Moreover, the FCC cannot interfere with a broadcaster’s selection and presentation of news or commentary.”

What Boot is calling for is completely at odds with how the FCC defines its mission, and how it acts in a manner that is consistent with the First Amendment.

The FCC is barred by law from trying to prevent the broadcast of any point of view. The Communications Act prohibits the FCC from censoring broadcast material, in most cases, and from making any regulation that would interfere with freedom of speech. Expressions of views that do not involve a “clear and present danger of serious, substantive evil” come under the protection of the Constitution, which guarantees freedom of speech and freedom of the press and prevents suppression of these expressions by the FCC. According to an FCC opinion on this subject, “the public interest is best served by permitting free expression of views.” This principle ensures that the most diverse and opposing opinions will be expressed, even though some may be highly offensive.

That phrase “clear and present danger of serious, substantive evil” comes from the Supreme Court case Terminiello v. City of Chicago, which held that a city ordinance banning speech that  “stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance” was unconstitutional under the First and 14th Amendments.

Justice William Douglas wrote in the majority opinion:

Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, (Chaplinsky v. New Hampshire supra, 315 U.S. at pages 571-572, 62 S.Ct. at page 769) is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. . . . There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups.

“Standardization of ideas by legislatures, courts, or dominant political or community groups” might be just what some people aim to achieve.

Biden can “reinvigorate” the FCC all he or Boot likes, but the federal agency is not going to have the authority to start telling cable channels what they can and can’t say . . . unless they want to get a blistering response from the U.S. Supreme Court for violating the First Amendment.