Paramount Shouldn't Fold to Trump

On February 1, 2004, I was watching Janet Jackson and Justin Timberlake wind up the Super Bowl halftime show and thought I saw something odd. Being not only a First Amendment and communications lawyer but also having been a TiVo early adopter, I scrolled back and confirmed: Monday was going to be a busy day.

Almost immediately, the Federal Communications Commission (FCC) was investigating CBS for what became known as “Nipplegate.” The network then turned to my boss, who enlisted my help, to defend against indecency charges. Years of opposition before the agency and in appeals court followed. During that time, the FCC also proposed to fine CBS even more for an episode of Without A Trace with a scene depicting a teenage hook-up party, which the commission claimed was impermissible under its indecency standards.

Eventually, the network prevailed in court, and the FCC had to cut CBS a check returning the fines it had paid for the halftime show. (The Without a Trace matter ultimately got dropped.)

Now CBS is back in the news. Less than two weeks into President Donald Trump’s second term, the network’s parent company Paramount is considering settling his lawsuit claiming CBS’ coverage of the presidential campaign—and, in particular, an allegedly deceptively edited interview with Kamala Harris—was unfair and somehow harmed him. Reports have tied this possible settlement to Paramount’s planned merger with Skydance, which Paramount shareholders fear the new administration could try to block or delay.

Notably, this also comes against a backdrop of President Trump’s appointed FCC Chairman Brendan Carr rattling his saber at broadcast networks that have earned the president’s ire.

Shortly before the inauguration, under the guidance of its former, Joe Biden–appointed chair, the FCC dismissed complaints against ABC, CBS, Fox, and NBC regarding broadcasts during the campaign—including CBS’ 60 Minutes Harris interview. In doing so, the FCC emphasized the importance of honoring CBS’ editorial discretion and broadcasters’ First Amendment right to report on matters of public concern as they see fit. But Trump’s handpicked successor has indicated the FCC will reconsider that dismissal, along with the NBC and ABC dismissals (but not the Fox dismissal, unsurprisingly). 

Freedom of the press protects journalists and the news media in publishing information—especially in the political sphere—free from official censorship. In that way, a free press serves a vital role as the “Fourth Estate” in our democratic society, keeping citizens informed so that individuals may oversee their government’s actions. As Ida B. Wells stated, “The people must know before they can act, and there is no educator to compare with the press.”

That’s why it’s concerning that CBS would go to the mattresses over a halftime show for a game it gets once every fourth year, or even a bread-and-butter scripted show like Without a Trace, but would capitulate when it comes to its news and political coverage. Already the network is reportedly poised to comply with an FCC demand for the transcript and camera feeds from the 60 Minutes interview. 

When parties to legal disputes resolve them with monetary payments rather than seeing them through to a decision, it is often said they are “buying peace.” Here, there is no peace to be bought, at least not without reassurance from the courts that CBS can cover political matters as its editorial discretion dictates, no matter how much it might displease the president or his appointees.

Let’s be clear: Paramount isn’t buying peace—it’s only buying CBS a four-year supply of lube.

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