EDITORIAL: FCC content regulation raises free speech issues

The Trump administration has made no bones about its frustration with the coverage it receives from various media outlets. And it’s true that many in the press haven’t been subtle about their discomfort with policies pursued by the White House.

But it would be prudent for President Donald Trump and those who serve him to remember the value of the First Amendment and to understand that, in the vast majority of efforts intended to silence the “opposition,” the White House is on shaky legal ground, to say the least.

The latest dust-up involves ABC News and “The View.” In February, the FCC — doing the bidding of the administration against a show that relishes piling on Mr. Trump — said it was investigating whether the talk show had violated equal time rules for interviews with candidates. Agency officials also said they may revoke the exemption for news shows now granted daytime and late-night talk shows.

This is all in keeping with Mr. Trump’s repeated efforts to threaten the broadcast licenses of over-the-air TV stations and networks that provoke his ire. (See: Jimmy Kimmel.) It’s also an unfortunate intimidation tactic intended to undermine free speech protections, and it highlights the need to reform an antiquated agency and its antiquated rules that date back to the Great Depression.

Efforts to use the FCC to control discourse is a bipartisan tradition that dates back decades. Democrats for years pondered using regulatory pressure to silence purveyors of right-wing talk radio, including the late Rush Limbaugh. During the pandemic, the Biden administration eagerly sought to control “misinformation,” often a euphemism for competing viewpoints.

But politicians — left, right or in between — have no business using the power of the state to suppress free and open debate. A bad idea doesn’t become good simply because your side adopts it.

The media landscape has changed drastically since the creation of the FCC in 1934. The idea that broadcasters on radio and network television should have different free speech rights than cable or internet providers and newspapers because the public “owns” the airwaves is a relic of the past. Today’s FCC should focus on maintaining spectrum rights for broadcasters rather than regulating content under the guise of “fairness.”

Such interventions inevitably run afoul of the First Amendment. In response to the FCC’s move, ABC executives have fought back, arguing that the agency’s actions are unconstitutional and “threaten to upend decades of settled law and ​practice and chill critical protected speech, both with respect to ‘The View’ and more broadly.” And they’ll almost certainly prevail in court.