Journal of Free Speech Law: "Making Broadcast Content Regulation Aggressive Again," by Stuart Minor Benjamin

The article is here; some excerpts from the Introduction:

Starting in the 1980s under President Reagan, the FCC curtailed or abandoned most of the content regulations of broadcasting that it had earlier promulgated. That pattern continued through the Biden Administration: Such regulation was largely dormant. Statutes regulating content existed (although, with the episodic exception of indecency, they were interpreted narrowly). But regulations created by the FCC were either repealed (notably the fairness doctrine), never applied (e.g., the broadcast hoax rule), or applied so rarely and weakly as to be toothless (e.g., the broadcast news distortion policy).

Broadcast television may seem like a relic of the past to some readers of this Article. But it garners more than 20% of all television viewing, and the legal issues it raises are important. The developments presented in this Article highlight important questions about the desirability of regulation and tell an instructive story about roads taken and not taken.

There are two key elements of the legal landscape for broadcasting. First, every license is for a term of years and then is subject to renewal under the statutory “public interest, convenience, and necessity” standard. The same public interest standard applies to any application to transfer a license from one entity to another, which means that any corporate merger or acquisition involving licenses requires the FCC finding that the transfer is consistent with the public interest. And, as judicial opinions and Commission practice make clear, the public interest standard extends well beyond concerns about competition.

How can the FCC exercise such pervasive control over a means of communication? That implicates the second key element of the legal landscape—Red Lion Broadcasting Co. v. FCC and FCC v. Pacifica Foundation.

Concerns about the public interest standard and Red Lion/Pacifica are not new. What, if anything, changed with the coming of the second Trump Administration?

First, the second Trump Administration has been more interested in regulating broadcast content than any of its predecessors since Reagan….

Second, the Supreme Court’s likely overruling of Humphrey’s Executor v. United States will mean that “independent agencies” like the FCC are subject to presidential control. …

Third, Trump has imposed more control over the executive branch than any President in at least a half century….

The FCC’s self-restraint on content regulation of broadcasting from Reagan through the Biden Administration could have been rejected at any time. One question is why the second Trump Administration has been more aggressive than its predecessors in pressuring broadcasters. Another is why its predecessors (including the first Trump Administration) did not make similar choices. There is of course no easy answer to either question, or to the related question of the role played by regulatory philosophy, political considerations, powerful interests, and the like in producing the restraint from Reagan through Biden or the apparent waning of such restraint in the second Trump Administration….

Although the story of broadcast content regulation from Reagan through Biden was largely one of continuity, outside of indecency regulation the biggest supporters of a broad and flexible application of the public interest standard have generally been on the political left, and the biggest detractors have generally been on the political right. Thus a question going forward is whether the second Trump Administration has discredited, or will discredit, broad governmental power for those on the political left—particularly with respect to speech—and has led, or will lead, those on the political right to be more supportive of such power….

This Article is … a case study of the easiest form of communication for a presidential administration to effectively exert some control over, but broadcasting is not the only medium an administration can influence. In this way, this Article implicates broader questions about regulation: What, if any, forms of content regulation are normatively desirable? How meaningful are speech protections in a world where the government can exert unseen pressure? How effective can laws be in constraining presidential administrations that maximally exercise the levers of power available to them?

Part I lays out the FCC’s strikingly broad statutory authority over broadcasting and the Commission’s early history of aggressive content regulation.

Part II focuses on the FCC’s curtailment of its regulations. This curtailment began in the Reagan Administration, and many commentators expected it to be reversed under a Democratic President. But, with the exception of indecency regulation in 1987 and the early 2000s, the light-touch regulation initiated under Reagan largely persisted through Biden.

Part III turns to the question of how this regulatory regime can be consistent with the First Amendment. The answer lies in the reasoning and holdings of Red Lion and Pacifica. Those cases could have been generative, but the Supreme Court has limited their application to broadcasting.

Part IV notes that not only can a new presidential administration revive old doctrines but it also can create new ones, because administrative law doctrines allow it to do so. These administrative law doctrines, combined with the public interest standard, thus greatly empower the government.

Part V considers possible ways of preventing or limiting a reinvigoration of content regulation of broadcasting. Overruling Red Lion and Pacifica or repealing the public interest standard are obvious options, but other options are available—notably lawsuits to stop jawboning.

Part VI, however, highlights the limits on these options. A President who makes it clear that he will impose maximum costs on those he dislikes by berating them can effectively achieve the results of jawboning without having to issue any threats; his targets will know that failing to do the President’s bidding will lead to costly castigation. This highlights an important point that transcends broadcasting: Norms do a tremendous amount of work, so a breakdown in norms has massive implications.

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