The Ultimate Reason Not to Censor

If the Trump Administration follows through on its F.C.C. threats, we'll all be robbed of the joy of legacy media failure

Jimmy Kimmel, exiting stage left. From the New York Times:

Now [Trump] is taking his campaign against free speech to a new level by using the assassination of Charlie Kirk as a justification to promise the repression of groups that he describes as liberal… The intimidation campaign is already having an effect. Federal officials have urged companies to fire workers who have criticized Mr. Kirk, and some have done so. In a direct exercise of government influence, Brendan Carr, the chairman of the F.C.C., threatened Disney for remarks that Jimmy Kimmel made on his late-night ABC show. “We can do this the easy way or the hard way,” Mr. Carr said. He also urged television stations to stop broadcasting the show. Two major station owners quickly did so, and ABC has suspended the show indefinitely.

Don’t do it, President Trump.

If you and F.C.C. Chair Brendan Carr follow through on threats to turn the federal government into broadcast media police, millions of Americans will not be able to enjoy the spectacle of people like Jimmy Kimmel suffering. It would be the greatest Schadenfreude robbery in history. As you like to say, “Nobody’s ever seen anything like it before.”

If the F.C.C. were mothballed for winter, most of the “Fake News Media” would be dead by Spring anyway. Half the network anchors are already sending out applications to work chair lifts at winter ski resorts. If however Trump drops the F.C.C. on the broadcast sector, it will be like every George Romero movie ever rolled into one, with already-dispatched figures like Kimmel and Stephen Colbert reanimated and turned into martyrs. Let the dead sleep, instead of waking them and forcing citizens like me to defend them.

The move by Carr to inject himself in the middle of Kimmel’s firing by telling Disney and ABC, “We can do this the easy way or the hard way” was and is a very serious one. This was no offhand unforced error by someone like Pam Bondi, who ran into a buzz-saw (mostly from the right) when she said the Constitution doesn’t protect hate speech. It’s not a trolling misdemeanor like the yanking of AP’s White House privileges. Now it’s clear why there was correspondence in the Twitter Files suggesting the U.S. could catch up to European censors by using F.C.C. authority. Why is the vision Carr has for the F.C.C. dangerous? Because it’s possible:

Carr has already tried to flex this muscle and has been talking for some time about wanting to “reinvigorate” the F.C.C. public interest standard, giving an interview to PBS News Hour in July in which he made his feelings clear:

When we license you or license a CBS station, we're necessarily denying another outlet the ability to use those airwaves. As a condition of that, broadcasters are unique. They have a public interest obligation. I think, for years, the F.C.C. has walked away from enforcing that public interest mandate. And I don’t think we’re better off for it… if you just step back and look at trust in mainstream outlets, like Gallup survey shows that it’s at an all-time low, increasingly below even the levels of trust that people have in Congress.

So I do think it’s an important role for Congress as a sign to the F.C.C. to make sure that broadcasters meet their public interest obligations. And that's what we're trying to do.

The public airwaves are the one piece of informational terrain over which the U.S. government can legitimately assert some authority. Pre-Internet, public broadcast licenses were the gold standard for subsidies, instantly enriching lessees and granting enormous political power. The awesome value of the licenses is why the government felt it could demand as a return condition that stations create programming in the “public interest, convenience, and necessity.” Traditionally, news stations understood that to mean they had to create content like news and interview shows, and not whore themselves for cash 100% of the time.

I’ve been around broadcast media since I was a toddler and never understood “public interest” to mean the F.C.C. had authority to enforce factuality, or punish what they call “collateral inaccuracy.” The American news system seemed distinguished by the absence of an OfCom or CRTC-style regulator, and while the F.C.C. obviously existed, it felt like more of an afterthought, one that never touched big three broadcasters and instead spent its time harassing pirate radio stations and listening for George Carlin’s infamous seven dirty words.

However, the F.C.C. does have authority it can invoke to act like a European-style regulator, via its “news distortion” standard, which has already come into play with Carr’s interest in 60 Minutes. A September 2021 FCC circular contained a long section about “news distortion,” saying:

The Commission generally will not intervene in these cases because it would be inconsistent with the First Amendment to replace the journalistic judgment of licensees with our own. However, as public trustees, broadcast licensees may not intentionally distort the news. The FCC has stated that “rigging or slanting the news is a most heinous act against the public interest.” The Commission will investigate a station for news distortion if it receives documented evidence of rigging or slanting, such as testimony or other documentation, from individuals with direct personal knowledge that a licensee or its management engaged in the intentional falsification…

The quote in the passage above comes from a 1998 Appeals Court case, Alexander J Serafyn v F.C.C. The petitioner, Serafyn, argued CBS should be denied a new station license because it had “intentionally distorted the situation in Ukraine by claiming that most Ukrainians are anti-Semitic.” Serafyn lost, but there is a long history of “news distortion” cases and it’s not difficult to imagine how the Trump administration might use this tool more, even though most “news distortion” complaints have failed.

In 1968, for instance, famed CBS broadcaster Charles Kuralt ran an influential spot called Hunger in America. A congressman named Henry Gonzalez claimed the show had been exaggerated. The F.C.C. struck the complaint down, saying it is “not a national arbiter of the truth” and was staying out of the case because it would “involve the Commission deeply and improperly in the journalistic functions of broadcasters.”

However, the Commission also noted “the licensee must have a policy of requiring honesty of its news staff and must take reasonable precautions to see that news is fairly handled.” The Commission over the years has repeatedly held that it does have purview over such cases, but only if there’s “extrinsic evidence,” like “written or oral instructions from station management, outtakes, or evidence of bribery” showing intent to deceive or distort. It also has to involve a “significant event” and not a “minor or incidental aspect” of the news report, but it seems like the main thing is, if they have a witness who’ll speak to intent, they can use this authority.

This is the problem. There are stories out there of former producers for networks (more often, cable stations) admitting to bias, sloppiness, and worse. People like Kimmel have said they’re “biased” on the air, and not even really in a joking way. The sheer quantity of uncorrected wrong stories would also impress Trump’s F.C.C. But we’ve been down this road before. Once a government official starts talking about correcting “misinformation,” as Carr has already done, it means they already have a vision for using the state as a truth-deciding mechanism, which even if it leaves the First Amendment alone outside the public airwaves, hurts it implicitly by creating official truth.

There’s one last reason for Trump to avoid pulling this fateful trigger. In doing so he would allow a generation of censorship advocates to wipe their slates clean, as the Times did in the story above, not mentioning years of other “intimidation campaigns” over speech by everyone from the White House to the FBI to the CDC. It will be forgotten that the same people raging now about firings of Kirk critics were just a few years ago insisting cancel culture didn’t exist and “we need more shaming and shunning, not less.” More than anything, though, it’s not necessary. The market is doing its job, in a big, funny way. Why put a stop to that?