During his first year as president, Donald Trump suggested that “NBC and the Networks” should lose their “licenses” because their “partisan, distorted and fake” news coverage was “bad for [the] country” and “not fair to [the] public.” Ajit Pai, the Republican chair of the Federal Communications Commission (FCC), pushed back, saying, “The FCC under my leadership will stand for the First Amendment, and under the law the FCC does not have the authority to revoke a license of a broadcast station based on the content of a particular newscast.”
Undeterred by that rebuke, Trump has repeatedly re-upped the idea that broadcast licenses should be contingent on whether they are used to air content that offends him. Last November, for instance, he complained that MSNBC “uses FREE government approved airwaves” to execute “a 24 hour hit job on Donald J. Trump and the Republican Party for purposes of ELECTION INTERFERENCE.” He declared that “our so-called ‘government’ should come down hard on them and make them pay for their illegal political activity.”
That jeremiad was nonsensical in at least two ways. First, there is nothing “illegal” about MSNBC’s anti-Trump content; to the contrary, the criticism to which Trump objects is constitutionally protected speech. Second, MSNBC is a cable channel, so it does not use “government approved airwaves” to transmit its programming and therefore does not need a broadcast license to operate.
Trump’s confusion presents a familiar question that has become especially important in the lead-up to next week’s presidential election. Should his frequently reiterated desire to punish his political enemies be dismissed as meaningless bluster, or does it reflect authoritarian impulses that should repel voters who values civil liberties and the rule of law? Whether you take Trump literally or seriously, the answer seems clear.
“In the past two years,” CNN’s Brian Stelter noted last week, “Trump has called for every major American TV news network to be punished….He has imprecisely but repeatedly invoked the government’s licensing of broadcast TV airwaves and has said on at least 15 occasions that certain licenses should be revoked.”
The most recent target of Trump’s ire is CBS, which aired a 60 Minutes interview with his Democratic opponent, Vice President Kamala Harris, on October 7. Trump, who declined to be interviewed by the show, complained that the edited version of Harris’ remarks made her response to a question about Israel seem more cogent and concise than it actually was. The result, Trump said on Truth Social the next day, was “a giant Fake News Scam by CBS & 60 Minutes.” Because “her REAL ANSWER WAS CRAZY, OR DUMB,” he averred, “they actually REPLACED it with another answer in order to save her or, at least, make her look better.”
Last week, 60 Minutes rejected Trump’s charge of “deceitful editing,” although its response was ambiguous enough to keep the controversy alive. The show “gave an excerpt of our interview to Face the Nation that used a longer section of her answer than that on 60 Minutes,” it said. “Same question. Same answer. But a different portion of the response. When we edit any interview, whether a politician, an athlete, or movie star, we strive to be clear, accurate and on point. The portion of her answer on 60 Minutes was more succinct, which allows time for other subjects in a wide ranging 21-minute-long segment.”
60 Minutes, in others words, conceded the gravamen of Trump’s complaint while insisting that there was nothing untoward about its editing, which it presented as routine practice. Whatever you make of that defense, the most notable thing about this flap was the response that Trump thought was appropriate. He claimed the editing, like MSNBC’s “ELECTION INTERFERENCE,” was “totally illegal,” meaning the FCC should “TAKE AWAY THE CBS LICENSE.”
Strictly speaking, there is no “CBS LICENSE.” CBS Entertainment, a division of Paramount Global, owns and operates 28 stations, 14 of which are part of the CBS network, which also includes more than 200 affiliates across the country that carry CBS programming. The implication of Trump’s demand, then, is that all of those stations should lose their broadcast licenses because he did not like the way that 60 Minutes edited its interview with Harris.
“It’s a very embarrassing moment for them,” Trump told conservative podcaster Dan Bongino on October 18. “But the media is not pressing it. You would think the media would be pressing it. And I go a step further. It’s so bad they should lose their license, and they should take ’60 Minutes’ off the air.”
Trump’s reaction to his experience during his September 10 debate with Harris on ABC was similar. In that case, his complaint was that the network’s moderators had fact-checked him in real time while letting Harris’ misrepresentations slide. As with the 60 Minutes interview, Trump’s beef was arguably legitimate. But in both cases, he took it for granted that the FCC could and should punish the perceived unfairness by imposing a regulatory death sentence.
“I think ABC took a big hit last night,” Trump said on Fox & Friends the day after the debate. “I mean, to be honest, they’re a news organization. They have to be licensed to do it. They ought to take away their license for the way they did that.”
Again, Trump’s understanding of FCC regulation, even after four years as president, remains hazy. A news organization does not “have to be licensed,” a situation that would be anathema to freedom of the press. But as with CBS, ABC’s network-owned stations and affiliates do hold broadcast licenses, which presumably would be revoked if it were up to Trump.
FCC Chair Jessica Rosenworcel, a Democrat, rejected that suggestion, echoing what her Republican predecessor, Pai, had said in 2017. “The First Amendment is a cornerstone of our democracy,” Rosenworcel said. “The Commission does not revoke licenses for broadcast stations simply because a political candidate disagrees with or dislikes content or coverage.”
Trump obviously sees the FCC’s mission differently. He not only thinks the agency should penalize broadcast news outlets for treating him unfairly; he imagines that it also has authority over cable content, which he conflates with broadcasting. “FAKE NEWS SHOULD NOT BE ALLOWED TO ‘STINK UP’ OUR AIRWAVES!” he declared in January, referring to CNN and MSNBC, both cable channels.
Even Fox News has not escaped the former and possibly future president’s wrath, although Trump has stopped short of his go-to solution while criticizing the channel’s choice of pundits. “FoxNews puts on the WORST people, and all done very purposely,” he complained on July 6, citing Wall Street Journal Associate Editor John Bussey, who “refuses to say, even though he knows it to be true, that everything I got accused of is a Biden inspired HOAX for purposes of Election Interference.”
That was the beginning of an anti-Fox tear. “Why does FoxNews keep putting all of these warped Biden Apologists on, one after another, like failed former Congressman Patrick Murphy?” Trump asked on July 7. “FoxNews: STOP PUTTING ON THE ENEMY!” he demanded on July 8.
As president, Trump would not have the power to unilaterally enforce such demands, especially with respect to cable stations such as CNN, MSNBC, and Fox. Stelter suggests that Trump nevertheless could cause trouble for broadcasters, noting that he has promised to “bring the independent regulatory agencies such as the FCC and the FTC back under presidential authority, as the Constitution demands.” That vow is ostensibly part of Trump’s deregulatory agenda, but it is reasonable to question that gloss given his persistent advocacy of regulatory penalties for news outlets that irk him.
The FCC, which by law cannot include more than three members of the same party, currently consists of three Democrats (Rosenworcel, Geoffrey Starks, and Anna M. Gomez) and two Republicans (Brendan Carr and Nathan Simington). Carr and Simington have both weighed in on the controversy over the 60 Minutes interview with Harris, citing the FCC’s authority to address complaints of “broadcast news distortion.”
The FCC describes that authority as “narrow” and notes that it does not apply to “cable news networks, newspapers or newsletters (whether online or print), social media platforms, online-only streaming outlets, or any other non-broadcast news platform.” The FCC “is prohibited by law from engaging in censorship or infringing on First Amendment rights of the press,” the commission notes. “News distortion ‘must involve a significant event and not merely a minor or incidental aspect of the news report.’ In weighing the constitutionality of the policy, courts have recognized that the policy ‘makes a crucial distinction between deliberate distortion and mere inaccuracy or difference of opinion.’ As a result, broadcasters are only subject to enforcement if it can be proven that they have deliberately distorted a factual news report. Expressions of opinion or errors stemming from mistakes are not actionable.”
Simington alluded to those principles in a comment on X last week. “Broadcast news distortion is an extraordinarily narrow complaint category,” he wrote. “CBS could easily remove the predicate for any further discussion by releasing the transcript” of the Harris interview. Carr concurred. “In my view,” he told Glenn Beck, “that’s the best way forward here: release the transcript, and there’s no reason to have this before the FCC.”
Although CBS so far has declined to release the full transcript, the FCC as currently composed is clearly not inclined to take up this matter or Trump’s other complaints about allegedly biased news coverage. But Rosenworcel’s term expires at the end of June 2025, meaning that Trump, if elected, would have a chance to appoint her replacement and designate a new chair.
The National Association of Broadcasters (NAB) seems worried about what might happen then. “From our country’s beginning, the right of the press to challenge the government, root out corruption and speak freely without fear of recrimination has been central to our democracy,” NAB CEO Curtis LeGeyt told CNN. “Times may have changed, but that principle—enshrined in the First Amendment—has not. The threat from any politician to revoke a broadcast license simply because they disagree with the station’s content undermines this basic freedom.”
Media attorney Andrew Jay Schwartzman thinks Trump will have trouble delivering on his threats to yank broadcast licenses. The process “is so time consuming that no license renewal could be denied before the end of a hypothetical second Trump term,” he told CNN. Furthermore, Schwartzman said, “decades of regulatory capture [have] made case law that strongly favors incumbent licensees.” He added that “the more cynical among us would observe that going after broadcasters is not a good thing to have on one’s résumé for post-FCC employment.”
If Trump had never been president and did not aspire to hold that office again, his confusion about the current regulatory system would be understandable. Notionally, the FCC can decline to renew a broadcast license based on considerations of “public convenience, interest, and necessity,” but it almost never does so, and such decisions are constrained by the First Amendment. For news outlets that do not hold broadcast licenses, no such review applies, even when they offer content that is indistinguishable from broadcasters’ programming.
Historically, that legal distinction was based on the “scarcity” of the radio spectrum—a rationale that makes little sense in the current media environment. From the perspective of viewers or listeners, the specific route that content travels before reaching them makes no difference, and it is hard to see why it should have constitutional significance.
Trump’s take on this admittedly baffling situation is nevertheless telling. He thinks federal regulators should have a say about anything that appears on TV, regardless of whether it actually involves “the public airwaves,” and he thinks they should use that imagined power to squelch content he identifies as “fake news” or “election interference.” As usual, what matters for Trump is whether people are saying “nasty” things about him, and he has no compunction about using state power to punish his critics. While his specific fantasy of doing that via the FCC may come to nought, I am not keen to find out what else he might try if voters give him the chance.
The post Trump Thinks News Outlets Should Lose Their Broadcast Licenses, Even When They Have None appeared first on Reason.com.
