Speech, Section 5, and Some Curious Scribbling: A First Amendment Story
The line between regulating conduct and regulating speech can be thin—and sometimes, suspiciously convenient.
Last week, my International Center for Law & Economics (ICLE) colleagues Ben Sperry and Jeff Westling published a post here at Truth on the Market titled “The FCC’s Sleeping Power over the Press.” It’s not about antitrust, but it’s well worth your time. Super-attentive readers of my agency roundup posts may recall my occasional forays into First Amendment issues (here and here, with links to journal articles here and here). Everyone needs a hobby. Mine happens to be the Bill of Rights. TMI? Perhaps. In any event, there’s a Federal Trade Commission (FTC) hook here. I’ll get to that.
Ben and Jeff focus on the administration’s “willingness to combat so-called ‘fake news’ through a little-used and difficult-to-enforce” policy recently invoked by Federal Communications Commission (FCC) Chairman Brendan Carr. As they note, Carr posted a screenshot of a Truth Social message from President Donald Trump criticizing press coverage of the conflict in Iran (not a war, even if it often looks like one). The president has every right to kvetch about coverage of himself, his policies, or anything else. There’s nothing objectionable about that, whether or not we agree with his views. I don’t take Ben or Jeff to suggest otherwise.
Carr, however, did more than amplify the president’s complaint. He added this on social media:
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.
That sounds like something more than a personal gripe. It’s certainly not a factual correction—Carr identified no specific errors or corrections. If he meant to engage in jawboning—or to signal something more pointed—the vagueness may be the point. As King Lear put it (not at his most lucid):
I will do such things/What they are, yet I know not; but they shall be/ The terrors of the earth
Better to avoid that sort of madness—and the time and expense of thorny constitutional litigation. You have Ben and Jeff’s post, so I won’t rehash it here. Jumping to their recommendations, they offer two sensible proposals: first, the FCC should repeal its “news distortion policy” through its “Delete, Delete, Delete” proceeding; second, Congress should repeal the statutory authority said to undergird that policy.
One more point. Neither Carr nor the Trump 2 administration invented jawboning or government efforts to influence the press. These practices didn’t begin with the Biden administration either, though they continued there. Murthy v. Missouri set a high bar for challenging “backdoor” government efforts to censor speech, over a sharp dissent from Justice Samuel Alito, joined by Justice Neil Gorsuch and Justice Clarence Thomas (Ben has a helpful post on the decision). But that case turned on standing. And National Rifle Association v. Vullo—also decided in 2024—took a less forgiving view of government pressure conveyed through “guidance letters” (see Ben and R.J. Lehmann’s post on Vullo). All worth keeping in mind as we turn to…