A Plea for Institutional Modesty

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“When someone tells you where they stand on free speech, they’ve told you just about everything you need to know about their position on government power.”

—X post by FCC Commissioner Brendan Carr, September 1, 2024

Dear Chairman Carr,

As a First Amendment advocate and former chief counsel to a Federal Communications Commission chairman, I respectfully offer some thoughts for your consideration as you head the agency tasked with regulating broadcast stations and certain other electronic media in the United States: be modest in your assertion of power.

With all due respect, it is not enough to hear what a government official may say about his or her commitment to freedom of expression. What matters is how that person acts once entrusted with the power of the office. 

That is especially true for those who serve at the FCC, an agency that “works in the shadow of the First Amendment,” as former Supreme Court Justice Stephen Breyer put it. Both by statutory and constitutional command, the FCC is prohibited from engaging in “censorship” or “interfering with the right of free speech.” 

To be sure, the FCC has not always been consistent in living up to these principles in its eighty-nine-year history. So it is always refreshing to hear commissioners praise our nation’s foundational values, which necessarily implies accepting limits to their own authority. In that regard, your history of speaking out to restrict government power and in support of the First Amendment has, at times, been encouraging.

Free Speech Warrior

You have been called a “free speech warrior,” and some of your past statements support that label. In 2021, when two Democratic members of the House Energy and Commerce Committee wrote to media outlets castigating them for spreading misinformation about the 2020 election and the COVID epidemic and demanding answers to a list of questions, you properly denounced it as “a chilling transgression of the free speech rights that every media outlet in this country enjoys.” As you observed at the time, “[a] newsroom’s decision about what stories to cover and how to frame them should be beyond the reach of any government official, not targeted by them.” 

Or when members of Congress urged the commission to reject a Miami radio station transfer based on the political viewpoints of the proposed new owner, you rejected this effort “to inject partisan politics into our licensing process,” correctly calling it “a deeply troubling transgression of free speech and the FCC’s status as an independent agency.” 

You have warned against extending FCC authority and common-carrier type regulation to online media, observing that the “American people want more freedom on the internet—not freewheeling micromanagement by government bureaucrats.” And you urged the commission to exercise caution before extending its jurisdiction to regulate artificial intelligence used in political advertising. The United States does not need “the FCC to operate as the nation’s speech police,” you explained, adding that “if there ever were a time for a federal agency to show restraint when it comes to the regulation of political speech and to ensure that it is operating within the statutorily defined bounds of its authority, now would be that time.” 

So in light of your earlier statements about the essential importance of free expression in our society and your repeated claims about the need to tightly cabin regulatory control over media, some of your first pronouncements after being elevated to FCC chair have been quite jarring.

Promise Versus Performance

Two days after assuming your new position, you set aside agency orders from the previous week dismissing complaints against television stations for their news and political programming decisions. One complaint claimed WCBS engaged in “news distortion” because of the way 60 Minutes edited its interview with Kamala Harris. Another charged an ABC network affiliate with “news distortion” based on how the network handled fact-checking during a presidential debate. And a third involved an alleged “equal opportunities” violation when Harris appeared on Saturday Night Live shortly before the November election. 

These complaints, in which avowedly politically motivated organizations asked the federal government to punish broadcasters for news judgments they disliked, are precisely the kind of efforts you have condemned in the past. When the FCC dismissed those complaints a few days before President Trump’s inauguration, then-chairwoman Jessica Rosenworcel said the FCC “should not be the president’s speech police” and cannot act as “journalism’s censor-in-chief.” Her comments sounded a lot like you when, in earlier cases, you warned against political interference with the broadcast press.

But in walking back the three dismissals, the commission’s media bureau only said, cryptically, that the orders “were issued prematurely based on an insufficient investigatory record.” Of course, embarking on a federal “investigation” into editorial decision-making only magnifies the incursion into the freedom of the press, as you have noted in the past. Nevertheless, the commission has since demanded—and CBS has agreed to provide—a full transcript of the 60 Minutes interview.

The commission staff dismissed a fourth complaint right before the inauguration as well, this one opposing the license renewal of Fox network affiliate WTXF-TV in Philadelphia for its news reporting on the 2020 presidential election. In doing so, it stressed that the FCC cannot “act as a self-appointed, free-roving arbiter of truth in journalism.” This dismissal you let ride—which was obviously correct—but the more favorable treatment of Fox, compared with CBS, NBC, and ABC, could lead some cynics to wonder whether the decision might have something to do with the perceived political alignments of the particular broadcasters. Any partisan application of the law would make the First Amendment problem even worse, as you well know.

Ominous Foreshadowing

Even before your elevation to the top spot at the FCC, some of your public statements were quite concerning from a free speech perspective. For example, you told an interviewer on Fox News that the news distortion complaint against 60 Minutes should be considered when the FCC rules on Skydance Media’s proposed $8 billion merger with Paramount (which includes transfer of twenty-eight local CBS stations). And you suggested in another interview that the FCC should investigate Harris’s appearance on SNL, with station licenses potentially revoked, even though NBC promptly provided response time to the Trump campaign. You have posted on X that “broadcast licenses are not sacred cows,” and that media companies “are going to be held accountable” under the FCC’s public interest standard. And you wrote to the head of ABC, complaining about the state of network news (and ABC’s coverage of Donald Trump in particular), and used that concern to leverage negotiations between the network and its affiliates over their compensation arrangements, adding, “I will be monitoring the outcome of your ongoing discussions with local broadcast TV stations.”

Beyond the area of broadcast regulation, where the FCC at least has jurisdiction to act, you wrote to the heads of Alphabet Inc. (Google), Meta (Facebook), Apple, and Microsoft to complain about a Big Tech “censorship cartel” and to demand that it be “completely dismantled.” Oddly, not all these companies operate online platforms that make moderation decisions that have raised political hackles, and they are not under the FCC’s jurisdiction. Yet you demanded that the companies provide information “that can inform the FCC’s work to promote free speech and a diversity of viewpoints” and made vague threats about Section 230 of the Communications Act, which you called “Big Tech’s prized liability shield.” Much of your ire was directed at NewsGuard, a private business (over which the FCC has zero authority) that rates the credibility of news sources based on transparent journalistic criteria. Although your demands were framed as a kind of appeal to free speech, it is impossible to miss the irony that a high government official was demanding that private business make changes in their speech policies. And it is difficult to reconcile the demands you make in this letter with your previous statements opposing bureaucratic micromanagement of the internet.

The Supreme Court addressed this irony head-on last term when it reviewed Texas and Florida laws that were predicated on the notion that Big Tech was engaging in “censorship” and that government regulation of moderation practices was the “cure.” While the court didn’t issue an ultimate ruling on the constitutionality of the laws, it dispensed with the notion that the government has any legitimate authority to “balance” the marketplace of ideas. The First Amendment limits government action; it does not empower the FCC or any other government body to impose on private businesses what it thinks is fair. As the court observed, “[o]n the spectrum of dangers to free expression, there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana.”

It is well known you were appointed to your position by a president who routinely calls for investigations and license revocations when late-night TV hosts mock him or reporters aggressively question him. And perhaps it is too much to ask that you tell your political benefactor this isn’t how any of this works. But you did swear an oath to uphold the Constitution and laws of the United States, and you know very well how these things work. You might at least consider not actively reinforcing uninformed social media rants.

Of course, you are not the first chairman to use the FCC as a pulpit—nor, I suspect, will you be the last. But there is one thing you should keep in mind: you don’t have as much power as you may think.

Regulating in the Public Interest

It is true that broadcasters are licensed to operate in the “public interest” by the federal government because of their use of the electromagnetic spectrum that the FCC regulates. And it is also true that, historically, this has allowed the government to engage in some control over content that is impermissible for other, unlicensed media. But this authority has always been in tension with the First Amendment, and the FCC’s ability to regulate broadcast content is probably at its lowest point since the commission was created, in 1934. Any effort to punish a broadcaster over its political coverage or its news judgment (not to mention jokes on late-night TV) would quickly be thrown out in court.

Even in the heyday of the public interest standard, the Supreme Court made clear that “the First Amendment must inform and give shape to the manner in which Congress exercises its regulatory power in this area” and the FCC must accord broadcasters “the widest journalistic freedom consistent with their public [duties].” The court has stressed that the FCC must “walk a ‘tightrope’” to preserve the First Amendment values written into the Communications Act and described this as “a task of great delicacy and difficulty.” These concerns existed even when the FCC’s authority under the public interest standard was at its zenith, and even at that time, the court cautioned that it would not hesitate to intervene if the commission went too far.

Since then, both Congress and the commission itself have recognized that the “scarcity rationale” that was used to justify broadcast regulation in the past is no longer valid, and the Supreme Court has observed that to whatever extent the rationale retains any force at all, it provides only “minimal” authority for the FCC to influence broadcast programming. It has flatly stated that “the FCC’s oversight responsibilities do not grant it the power to ordain any particular type of programming that must be offered by broadcast stations.”

In 2025, any aggressive action by the FCC to regulate broadcast programming would provide an opportunity to challenge whatever remains of the public interest standard as a reason to treat broadcasters differently from other media. And FCC meddling in editorial decisions regarding political coverage and news judgment would provide an easy case for limiting the FCC’s authority. That is especially true if the commission’s actions are perceived as politically motivated.

Regulatory Mission Creep

Your foray into regulating what you call “Big Tech” is even more tenuous. The FCC only has the jurisdiction Congress has delegated to it, and it has never been vested with authority to regulate social media platforms, much less computer companies. The FCC during the first Trump administration floated the theory that the commission could influence online media because it has a role in interpreting Section 230, claiming that courts must defer to the agency’s “reasonable interpretations of all ambiguous terms in the Communications Act.” Your November 2024 letter to the tech companies suggested the same thing, when you asserted that the FCC administers Section 230.

I read the law differently and see no role for the FCC here. But no matter, the Supreme Court spoke to this broader question of federal agency jurisdiction just last term, making clear it is the job of federal courts—not administrative agencies—to interpret the meaning and scope of federal laws. As the court made clear, “even when an ambiguity happens to implicate a technical matter, it does not follow that Congress has taken the power to authoritatively interpret the statute from the courts and given it to [an administrative] agency.” This rule does not change because of “individual policy preferences.” Put bluntly, interpreting Section 230 isn’t in the FCC’s job description.

Lower courts have already applied the Supreme Court’s ruling to curtail the FCC’s ability to interpret the law to impose so-called “network neutrality” rules and to treat online information service providers as common carriers. In limiting the FCC’s authority in this area, the Sixth Circuit cited Section 230 as setting forth the congressional policy to leave the internet and other interactive computer services “unfettered by Federal or State regulation.” It would be paradoxical indeed to try to use Section 230 as the “hook” by which to impose greater federal control over online businesses.

Even if congressional policy were unclear on this point, the First Amendment limits any role for the FCC, as the Supreme Court also made clear last term. While you have framed your position as a desire to prevent Big Tech “censorship” and to smash what you have called the “censorship-industrial complex,” the court explained that using government power in this way rests on “a serious misunderstanding of First Amendment precedent and principle.” Leveraging state authority to prevent private “censorship” is not even a valid governmental purpose, and efforts to use such power would fail under any level of constitutional scrutiny. As the court observed, the First Amendment bars “the government from tilting public debate in a preferred direction.”

Regulation by Raised Eyebrow

To be sure, FCC commissioners and chairmen have not always been entirely fastidious in respecting the statutory and constitutional limits of their office. The practice of making threats (veiled or otherwise), demanding answers or documents from licensees, or otherwise exerting informal pressure has been sufficiently common that the courts have given it a name: regulation by raised eyebrow. It is also generally called “jawboning.” Some officials believe they can avoid judicial scrutiny if they only act informally, confining their actions to bullying through unofficial actions. But they are wrong. 

The DC Circuit is keenly aware that the FCC can abuse its authority in this way and has limited “raised eyebrow” tactics in past cases. And the Supreme Court again last term reaffirmed that government officials violate the First Amendment if they use coercive threats to restrict speech. That case involved a New York State financial services regulator that put pressure on insurance companies to cut their ties with the National Rifle Association because of the state’s disagreement with the NRA’s pro-gun advocacy. The court observed that public officials may denounce disfavored speech all they like, but they cannot flex their regulatory muscles in order to silence the speaker.

In reaching this conclusion, it unanimously reaffirmed that the Constitution bars government officials from using indirect means to do what they cannot do directly, and that includes both threats to impose sanctions if the target doesn’t give in and promises of leniency if it does. Such jawboning is a particular concern when officials seek to “expand their regulatory jurisdiction to suppress the speech of organizations they have no direct control over.” While this rule covers all government officials, it applies with special force to the FCC because your agency regulates communications media and is bound by law to respect constitutional limits. Bottom line, given your position, writing threatening letters may be enough to get you into constitutional hot water.

Political Reality 101

Ultimately, if the president is happy with the public positions you have been taking, why should you care if the rest of the world describes your rhetoric about free speech as empty and your conflicting positions hypocritical? You must be doing something right if your statements helped get you the appointment as chair, and you have the political winds at your back. Fair enough, but I respectfully suggest this represents short-term thinking.

Sooner or later, you (or someone at the FCC) will be required to defend the various inconsistent positions in court, and in that forum, notions of “political reality” tend to fall short. Former FCC general counsel Jack Smith learned this lesson the hard way when he was directed by the Court of Appeals to explain why the FCC was continuing to enforce the fairness doctrine after the commission had concluded that the scarcity rationale could no longer support it. The answer, of course, was that key members of Congress liked having an FCC rule they could hold over broadcasters’ heads, and they pressured the commission not to end it. So when Smith had to explain the FCC’s inconsistent positions in court, he said “we are not talking law school enforcement, legal textbook arguments; we’re talking political reality here.”

The judges, less than impressed, reminded Smith and the agency that “federal officials are not only bound by the Constitution, they must also take a specific oath to support and defend it.” The court compelled the commission to discharge its constitutional obligations regardless of whether “the resolution would be politically awkward,” a ruling that set the fairness doctrine on the road to oblivion. Think of it as a cautionary tale if you really want to be known as a free speech warrior.

It also is worth keeping your longer-term legacy in mind. Officials who have tried to use their power to muzzle the press for short-term political gain have not been treated well by history. The Nixon administration was particularly antagonistic to the press and used a variety of tools to intimidate and punish disfavored reporters and critical news organizations. The White House tapes recorded Nixon threatening to act against broadcast stations owned by the Washington Post in retaliation for its coverage of the Watergate scandal, and he arranged for political allies to challenge license renewals of “unfriendly” stations. Nixon failed, the rule of law held, and his abusive tactics have been remembered as a black mark on the presidency and a cautionary tale.

If I were your adviser, this is not how I would want history to remember you.

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Robert Corn-Revere served as chief counsel to former FCC chairman James H. Quello. He is currently chief counsel for the Foundation for Individual Rights and Expression.