Pull the plug on the FCC

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Like 99.5 percent of American adults, I wasn't watching Jimmy Kimmel's show on ABC when he made his unfunny comment suggesting that the man charged with the murder of conservative activist Charlie Kirk was part of "the MAGA gang" now trying "desperately" to distance itself from the accused killer. It was a cheap shot, and Kimmel was rightly criticized for his tastelessness. Then again, tasteless jokes are hardly a rarity in late-night television. If every comic who crossed the line into mean-spiritedness or bad judgment were sent packing, there would be no one left on network TV after 11:30 p.m.

Yet as disgraceful as Kimmel's crack was, what happened next was far worse. Within a day and a half, Federal Communications Commission chairman Brendan Carr was publicly urging licensed broadcasters to declare that "we're not going to run Kimmel anymore." He emphasized his demand with an unsubtle warning: "Broadcasters … have a license granted by us at the FCC, and that comes with an obligation to operate in the public interest. When we see stuff like this, look, we can do this the easy way or the hard way."

Nice TV operation you have here. Be a shame if something were to happen to it. Almost immediately, station owners Nexstar and Sinclair capitulated, announcing that "Jimmy Kimmel Live!" would stop appearing on their affiliates. Then ABC yanked Kimmel's show. The speed of the surrender was as chilling as the threat itself. What looked at first like another fleeting late-night controversy turned out to be an alarming display of authoritarian muscle, backed by the power of federal regulation. (Late Monday, following days of controversy, ABC's parent company Disney announced that "Jimmy Kimmel Live!" would return to the air Tuesday.)

The cancellation was scandalous. An insipid crack from a late-night TV host may be regrettable, but it is not a threat to the republic. What is a threat is politicians and regulators exploiting their authority to stifle voices they dislike. Carr used the power of the FCC not to protect the public interest, but to punish a critic of the president who appointed him.

Only a naïf can imagine that this abuse will end with Kimmel, or with Stephen Colbert — another Trump critic whose show was cancelled by CBS a few weeks earlier. If government officials are allowed to get away with weaponizing broadcast licensing to intimidate or gag their critics, they will keep doing it. And when the "out" party regains power, its officials will do it too. The real late-night obscenity isn't what an entertainer said about the Kirk assassination. It's that federal regulators have the power to shut him down for saying it.

The gall of Carr's maneuver is compounded by its sheer hypocrisy.

This is the same Brendan Carr who not long ago held himself out as one of Washington's fiercest defenders of free speech. As the Foundation for Individual Rights and Expression recounts, when Democrats in Congress tried to pressure broadcasters over their coverage of COVID-19 and the 2020 election, Carr called it "a chilling transgression of the free speech rights that every media outlet in this country enjoys," insisting that "a newsroom's decision about what stories to cover and how to frame them should be beyond the reach of any government official."

Likewise, when members of Congress urged the FCC to block the transfer of a Miami radio station because they disliked the political views of the prospective owner, Carr excoriated their efforts as an outrageous gambit "to inject partisan politics into our licensing process," and denounced the "deeply troubling transgression of free speech and the FCC's status as an independent agency."

Yet now, when it suits his political patron, Carr does precisely what he once decried, wielding the FCC's hold over licenses as a weapon to muzzle speech.

For years, Republicans and Trump supporters fumed when Democrats twisted the arms of media companies. They denounced the Obama administration's pressure campaigns against Fox News and its drive to prosecute public employees who talked to the press. Trump supporters similarly raged at the Biden White House for nudging social media platforms to squelch pandemic "misinformation" or to suppress stories embarrassing to the president. They were right to fume: When government bullies media outlets into toeing a partisan line, it is assaulting the First Amendment.

But that principle is supposed to cut both ways. The same conservatives who once warned of the dangers of politicized broadcasting now applaud when Trump's FCC chairman openly threatens to pull licenses unless critics' shows are cancelled.

Nothing corrodes a constitutional principle faster than treating it as a partisan plaything. If you rail against censorship when Democrats do it, but cheer when Republicans do it, what you are defending isn't freedom but two-faced factional advantage. Carr and Trump have dragged the GOP into the very swamp of speech suppression they used to pretend they found abhorrent. Their followers, in celebrating the silencing of liberal comedians, ought to be reminded that the same regulatory cudgel can — and inevitably will — be swung against them when the political tide changes.

Carr's threats have a long and ignoble pedigree. From the earliest days of federal oversight of the airwaves, politicians have deployed the FCC's authority to suppress speech they disliked. Indeed, abuse of the First Amendment is woven into the agency's history.

Franklin D. Roosevelt, for example, made little secret of his determination to rein in radio critics during the 1930s. When broadcasters aired speeches hostile to the New Deal, his administration retaliated by siccing regulators on them. By 1939, the National Association of Broadcasters' "codes" required advance review of political broadcasts. Radio executives, fearful of losing their licenses, quashed controversial programming.

"It did not take long for broadcasters to get the message," historian David Beito wrote in Reason magazine in 2017. "CBS Vice President Henry A. Bellows said that ‘no broadcast would be permitted over the Columbia Broadcasting System that in any way was critical of any policy of the Administration.'" In fact, Bellows said, CBS considered itself to be "at the disposal of President Roosevelt and his administration."

That pattern only intensified once the FCC began codifying rules about "fair" and "balanced" coverage. In 1949, the agency adopted the so-called "Fairness Doctrine," which required broadcasters to present all points of view on controversial issues of public importance. Though in theory the doctrine was about balance, in practice it became a weapon to strengthen incumbents.

Broadcast pioneer Fred W. Friendly, who became president of CBS in the 1960s, described in one of his books how President John F. Kennedy's aides urged the use of Fairness Doctrine complaints to tie up conservative radio stations. Friendly quoted the blunt summary of one top JFK official, Assistant Secretary of Commerce Bill Ruder: "Our massive strategy was to use the Fairness Doctrine to challenge and harass right-wing broadcasters," making it so costly to criticize the administration "that they would be inhibited" into silence.

Similar intimidation and abuses occurred during the Lyndon Johnson and Richard Nixon administrations, which used the Fairness Doctrine to ensure unfairness, intimidation, and censorship. The doctrine was finally scrapped by President Reagan in 1987. Only then did talk radio and other robustly opinionated formats take off.

Even without the Fairness Doctrine, however, the mere existence of the FCC and its power to issue broadcast licenses means that the federal government can flex its muscle to police any speech it doesn't like. In a badly misguided 1969 case, Red Lion Broadcasting v. FCC, the Supreme Court ruled that statutory limits on broadcasters' free speech rights may be restricted by Washington, so long as those restrictions are in the "public interest." And what qualifies as the public interest? That is for Congress and the FCC to decide.

Across decades, Republican ascendancy has alternated with Democratic upsurges, but the pattern hasn't changed: When government holds the power to decide who may broadcast, that power will be used to punish dissent. Carr and Trump are today's offenders, but the real problem is structural.

The United States has never required government licensing of newspapers, magazines, or book publishers. Nor does Washington have any power to dictate who may run a website, produce a podcast, or launch a streaming service. The First Amendment forbids all such meddling.

Yet, unique among communications media, broadcast radio and television remain subject to federal licensing. A network can be silenced not because viewers desert it or advertisers pull their support, but because Washington disapproves of its content. That power is fundamentally incompatible with freedom of the press. The Constitution doesn't say, "Congress shall make no law … abridging the freedom of speech, except for speech that uses radio waves." It doesn't make an exception for late-night comedy. It doesn't empower political appointees to decide which TV shows Americans may watch.

Why does the FCC even exist? Defenders of the agency usually fall back on one justification: The broadcast spectrum is "scarce," they say, and frequencies must be rationed by government. But that argument has never made economic sense, and it makes even less sense now. Every human good is scarce in some sense — land, water, food, energy, microchips — yet no one suggests that federal regulators should assign ownership of farms or allocate grocery stores. Scarcity is best managed through markets, contracts, property rights, and local governance. The same mechanisms that ensure we can productively use land, or compete peacefully in selling food, or print rival newspapers, can ensure that broadcast signals don't interfere.

The "spectrum scarcity" excuse has always been a pretext for regulation, not a justification for it. Thanks to technology, the usable spectrum has expanded vastly since the 1920s. And with the rise of cable, satellites, streaming services, and the internet, broadcasting is only one of many ways Americans communicate. If the FCC vanished tomorrow, Americans would still have abundant ways to get news, entertainment, and information — and broadcasters would readily find ways to coordinate frequencies without government censors breathing down their necks.

The real issue here isn't technology but liberty. A free people must not entrust politicians with the power to silence critics. A nation committed to the First Amendment must not tolerate a federal agency with the power to decide who may broadcast and what they may say. As long as the FCC exists, the temptation to abuse its power will be irresistible — and that temptation will be indulged by whichever party holds power in Washington.

Conservatives cheering today as Kimmel and Colbert are driven off the air should pause to remember that someday soon Democrats will hold the whip hand. They will not hesitate to use FCC leverage against conservative broadcasters, Christian radio, or Fox News. The only way to prevent such abuses tomorrow is to remove the means of abuse today.

To my mind, Kimmel is not remotely a sympathetic character. There is good reason why 99.5 percent of Americans didn't watch his show. Nonetheless, for that show to be cancelled via government bullying was an outrage — and a perfect demonstration of how dangerous it is to allow Washington to hold veto power over broadcast content.

The First Amendment promises Americans freedom of speech and of the press. That promise will never be secure so long as the FCC exists.

Jeff Jacoby is a columnist for The Boston Globe, from which this is reprinted with permission.

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