Brendan Carr and the Fog of War

FCC Chair Brendan Carr has taken lots of actions to designed to punish broadcasters that have behaved inappropriately by his lights: he has opened an investigation into a broadcaster reporting on the location of Immigration and Customs Enforcement actions; responded to Comcast, which allegedly “impl[ied] that [Kilmar] Abrego Garcia was merely a law abiding U.S. citizen” and ignored facts about Garcia, by suggesting that Comcast had engaged in news distortion; suggested narrowing the category of bona fide news programs that are exempt from the equal time requirement; suggested that the splicing together of two different portions of Trump’s January 6, 2021 speech at the Ellipse may constitute news distortion and/or a broadcast hoax; and opened other news distortion investigations. And most famously, he threatened broadcasters who carry Jimmy Kimmel’s show. But his post yesterday responding to a Trump post is notable for its brazenness.

The Fog of War and War Reporting

On Friday the Wall Street Journal reported that, according to U.S. officials, an Iranian missile struck and damaged five Air Force refueling planes that were on the ground at an airbase in Saudi Arabia. Yesterday Trump claimed on Truth Social that the Wall Street Journal’s reporting was inaccurate, as “Four of the five [planes] had virtually no damage” and “One had slightly more damage.” And then in language that somehow no longer seems shocking, he said that the reporters involved “are truly sick and demented people.”

Less than three hours later, Carr posted Trump’s statement on Twitter/X and said in response:

Broadcasters that are running hoaxes and news distortions – also known as the fake news – have a chance now to correct course before their license renewals come up. The law is clear. Broadcasters must operate in the public interest, and they will lose their licenses if they do not.

Note that the factual differences between the WSJ and Trump are fairly small (all agree that the planes were hit) and that the WSJ’s reporting relied on U.S. officials. More importantly, it is difficult for anyone (soldiers, journalists, and Presidents) to determine the facts in any war. So if a journalist cannot safely publish unless he/she is certain that every significant fact is absolutely correct, there will be precious little war reporting. I always assumed that decisionmakers wouldn’t try to so restrict war reporting, but Trump and Carr indicate otherwise.

Newspapers, Broadcasters, and Threats

As to Carr’s invocation of news distortions and broadcast hoaxes: As I discuss in a forthcoming article I just posted (and in less detail about news distortion in this post), it would be an unprecedented extension of the new distortion policy and the broadcast hoax rule to apply either of them to mistaken war reporting. With the exception of a couple of bursts of indecency regulation, the FCC narrowly interpreted its public interest authority from the Reagan Administration through the first Trump Administration and the Biden Administration, but Carr has rejected that longstanding consensus.

Carr’s post illustrates the vast difference between the Supreme Court’s treatment of broadcasting and all other media. Trump focused only on newspapers, but the First Amendment would prohibit government action against them for their reporting. Carr pivoted to broadcasters, who have much less protection under Red Lion Broadcasting Co. v. FCC and FCC v. Pacifica Foundation.

That’s not to say that those cases would protect Carr’s threats. Red Lion applies to speech that the government deems valuable, and Pacifica focused on indecency, so there is a reasonable argument that neither would give the government any greater ability to publish false broadcast speech than false speech on any other medium. And I think the current Court would probably overrule both cases if the issue were squarely presented (flowing from the FCC’s longstanding restraint, the Court hasn’t had occasion to reconsider either case).

When the Reagan FCC repealed the Fairness Doctrine, it articulated its preferred First Amendment approach, stating:

We believe that the role of the electronic press in our society is the same as that of the printed press. Both are sources of information and viewpoint. Accordingly, the reasons for proscribing government intrusion into the editorial discretion of print journalists provide the same basis for proscribing such interference into the editorial discretion of broadcast journalists. The First Amendment was adopted to protect the people not from journalists, but from government. It gives the people the right to receive ideas that are unfettered by government interference. We fail to see how that right changes when individuals choose to receive ideas from the electronic media instead of the print media. There is no doubt that the electronic media is powerful and that broadcasters can abuse their freedom of speech. But the framers of the Constitution believed that the potential for abuse of private freedoms posed far less a threat to democracy than the potential for abuse by a government given the power to control the press. We concur. We therefore believe that full First Amendment protections against content regulation should apply equally to the electronic and the printed press.

Carr’s threats make that language seem quaint.

In some ways, Carr has done us all a service by being clear about his desire to cow broadcasters. To quote Justice Scalia from a different context, issues frequently “come before the Court clad, so to speak, in sheep’s clothing…. But this wolf comes as a wolf.”