Trump Administration Trying to Pressure Broadcasters Not to Schedule Football Game Broadcasts for Same Time as Army-Navy Game

From Friday’s Executive Order, “Preserving America’s Game“:

Section 1.  Purpose.  For over a century, the Army-Navy Game, known as “America’s Game,” has stood as a symbol of excellence and the American spirit.  Now, the recent and potentially ongoing expansion of the College Football Playoffs (CFP) and other postseason college football games threatens to encroach upon the second Saturday in December—a date traditionally reserved exclusively for “America’s Game.”  Such scheduling conflicts weaken the national focus on our Military Service Academies and detract from a morale-building event of vital interest to the Department of War.  Accordingly, it is the policy of the United States that no college football game, specifically college football’s CFP or other postseason games, be broadcast in a manner that directly conflicts with the Army‑Navy Game….

Sec. 2.  Implementation.  (a)  The Secretary of Commerce and the Chairman of the Federal Communications Commission (FCC) shall coordinate with the CFP Committee, the National Collegiate Athletic Association, related organizations, other appropriate Government agencies, and the playoffs’ broadcast and media rights partners with the goal of establishing an exclusive window for the Army-Navy Game, during which no other college football game is broadcast.

(b)  The Chairman of the FCC shall consider reviewing the public interest obligations of broadcast licensees to determine whether those obligations would require that the Army-Navy Game remain a national service event.

Sec. 3.  General Provisions.… (b)  This order shall be implemented consistent with applicable law ….

A few thoughts on why this strikes me as an attempt to unconstitutionally pressure broadcasters:

[1.] The Supreme Court has indeed upheld requirements that broadcasters—unlike newspaper publishers, book publisher, Internet sites, cable programmers, etc.—must operate in the “public interest,” and that includes some latitude for examining what they broadcast. (See Prof. Stuart Benjamin’s just-published Journal of Free Speech Law article Making Broadcast Content Regulation Aggressive Again.) That’s why, for instance, Red Lion Broadcasting Co. v. FCC (1969) upheld the broadcast radio and television Fairness Doctrine, which required broadcasters to give “fair coverage” to “each side” of controversial “public issues”; the Court has struck down a similar requirement for newspapers.

[2.] But the Court has recognized that broadcasters retain broad First Amendment rights, and that the public interest standard has to be interpreted in light of those rights. To quote CBS, Inc. v. DNC (1973) (emphasis added),

Other provisions of the 1934 [Communications] Act also evince a legislative desire to preserve values of private journalism under a regulatory scheme which would insure fulfillment of certain public obligations. Although the Commission was given the authority to issue renewable … licenses to broadcasters and to promulgate rules and regulations governing the use of those licenses, both consistent with the “public convenience, interest, or necessity,” § 326 of the Act specifically provides that:

“Nothing in this chapter shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication.”

From these provisions it seems clear that Congress intended to permit private broadcasting to develop with the widest journalistic freedom consistent with its public obligations. Only when the interests of the public are found to outweigh the private journalistic interests of the broadcasters will government power be asserted within the framework of the Act. License renewal proceedings, in which the listening public can be heard, are a principal means of such regulation.

[3.] The Executive Order thus can’t be sustained even under the more relaxed First Amendment standard used for broadcasting: While there’s surely a public interest in national defense, it seems very hard to imagine that military morale will actually be materially reduced by the fact that fewer people watch the Army-Navy Game. Such a weak justification can’t suffice to show that “the interests of the public … outweigh the private journalistic interests of the broadcasters.” Indeed, consistently with Red Lion, the interests of the public would likely be seen as being in having more choices, not fewer.

The Executive Order thus seems to me not a faithful application of the public interest standard, but a reductio ad absurdum of that standard. You can imagine someone criticizing the public interest standard back when Red Lion was being considered using this as a hypothetical: “If we say that the First Amendment lets the FCC regulate under the ‘public interest’ standard, the FCC might come up with all sorts of unnecessary and intrusive restrictions—say, requiring broadcasters not to broadcast any football games at the same time as the Army-Navy Game.” I suspect defenders of the public interest standard would have said, “Ridiculous! No-one would ever apply the public interest standard that way.” And yet here we are.

Red Lion has been sharply criticized, including by Justice Thomas (joined by Justice Scalia and Chief Justice Rehnquist). The Court has had no case in recent years where it had to decide whether Red Lion should be overruled, and be replaced by a rule of full or nearly full First Amendment protection for broadcasting. But if such a case arises, this Executive Order would be a prominent float in the parade of horribles that the lower protection for broadcasting has created.

[4.] Now to be sure, the Order is indirect in its operation: It requires that the FCC Chairman “shall consider reviewing the public interest obligations of broadcast licensees to determine whether those obligations would require that the Army-Navy Game remain a national service event,” which suggests that potentially the FCC Chairman could determine that the obligations don’t require an Army-Navy Game exclusive window. And perhaps the FCC Chairman could conclude that the requirement that “This order shall be implemented consistent with applicable law” means that broadcasters’ contrary decisions can’t be held against them, despite the Order.

But obviously the goal of the Order is to use the looming threat of possible license cancellation to pressure broadcasters into making a particular content decision. The Court has recognized that such indirect threats can themselves violate the First Amendment (see NRA v. Vullo (2024)).

And indeed this should be apparent if we just change the details a bit. Say that a future President Newsom writes a similar order saying the FCC Chairman “shall consider reviewing the public interest obligations of broadcast licensees to determine whether those obligations would require” that the broadcasters not air pro-gun-rights views, or anti-abortion views, or whatever speech President Newsom thinks is against the “public interest.” I take it that we’d quickly recognize that such an Order would unconstitutionally threaten speech, even though it isn’t framed as a categorical “no licensee shall air such views” requirement.

Or say that a public university president orders administrators that they “shall consider reviewing the student conduct code obligations of students to determine whether those obligations would require” the students to refrain from speech criticizing gay or trans rights, or praising Charlie Kirk, or whatever else. Again, I take it we’d understand the threat such an order would pose to student free speech rights, even if the order is framed as “shall consider reviewing” rather than as a categorical rule. The same, I think, applies to the Army-Navy Game Order.

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