By Robert Corn-Revere… 

As usual, the story began with some unhinged tweets from the president: “With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License? Bad for country!” Lest he be misunderstood, Trump followed his first volley with this: “Network news has become so partisan, distorted and fake that licenses must be challenged and, if appropriate, revoked. Not fair to public!”

Reacting as much to the gibes of late-night comics as to adverse news coverage, Trump also hinted at bringing back the Fairness Doctrine (mistakenly referring to it as “equal time”), a former rule of the Federal Communications Commission that required broadcasters to provide balanced coverage of controversial issues of public importance.

The president’s October 11 outbursts were followed, predictably, by rounds of press reaction, including expert commentary, explaining that the vacuous pronouncements misunderstood basic legal principles, how no broadcast licenses were in jeopardy, and why Rex Tillerson was right about his boss.

But the story did not end there. Within a week of the twitburst, Ajit Pai, the current FCC chairman, affirmed his support of the First Amendment, telling an audience at George Mason University the FCC “does not have the authority to revoke a license of a broadcast station based on the content of a particular newscast.”

Some complained that Chairman Pai had not reacted quickly or strongly enough when he stated the obvious, saying “history will not be kind to silence.” And at an October 25 House Energy and Commerce Committee oversight hearing, ranking member Frank Pallone of New Jersey criticized Pai for the “tenor” of his response to the president’s comments.

Others, including some longtime advocates of expanding the FCC’s authority to regulate broadcast content, weighed in on how Trump’s words were an affront to the First Amendment. Former acting chairman Michael Copps said Trump’s words have had “a dangerous and chilling effect” and he worried that smaller broadcasters would lack the resources to “do battle with the president.” Andrew J. Schwartzman, a veteran media activist who now teaches at Georgetown University Law Center, discounted the possibility of any actual legal threat, but described the president’s tweets as “a cause for grave concern as a First Amendment matter.”

An Empty Barrel

Grave concern? Really? No doubt any action by a government official to punish a broadcaster for its news coverage would violate the fundamental constitutional guarantees of freedom of speech and of the press. But what is the proper response when the president erupts with half-baked attacks on the press that could have no possible legal effect? And does it “support” the First Amendment if all you are willing to do is denounce an empty threat?

Leaving aside the fact that networks are not licensed by the FCC (although their owned and operated broadcast stations are), let’s count the ways Trump’s display of policy Tourette’s Syndrome could not represent any genuine risk of adverse licensing action:

First, the FCC is an independent regulatory agency and does not take direction from the White House. It is headed by five commissioners, which means five intelligent and dedicated public servants stand between presidential tantrums and any regulatory actions against broadcast licensees.

Second, any official inquiry involving broadcast licenses would have to proceed under the Commission’s established rules and is governed by due process. This means any license challenger would have to make a solid case that a network-owned station had committed an actual rule violation that is sufficiently serious that it could affect the license. The process takes years, and Trump will be long gone by then.

Third, any adverse licensing action is subject to judicial review (adding more years), and the courts would see such an action against a broadcast license for what it is – government interference intended to stifle the press and an affront to the First Amendment. It would be an easy case.

But the matter would never get that far. Just as earlier this year, nothing happened after Trump tweeted that CBS should be investigated under the broadcast indecency rules because of Stephen Colbert’s late night rant about the president that ended with a reference to a part of Vladimir Putin’s anatomy and Donald Trump’s mouth. The FCC actually received thousands of complaints about the monologue, but dismissed them in record time (by Commission standards) because it was obvious no rule was violated.

But does explaining this matter? Not really, because Trump’s petulant tweets calling for some kind of action against the press generally or against speakers he dislikes are so frequent, so devoid of logic, and so contrary to law it is impossible to keep up. By the time experts can be marshalled to explain the deeper issues raised by the president’s shallow words, Trump has moved on. It is the modern embodiment of a thought variously attributed to Jonathan Swift, Thomas Jefferson, Mark Twain, or Winston Churchill (take your pick) that “a lie can travel halfway around the world before the truth can get its boots on.”

Just think of the range of First Amendment controversies triggered by Trumpian tweets that generated – and continue to generate – outraged reactions among thinking people but that have no chance resulting in official action:

  • Candidate Trump said we should “open up” the libel laws (whatever that means);
  • Newly elected President Trump declared the press the “enemy of the American people” and has since suggested that the mainstream press “hates America”;
  • The president suggested that protestors who burn the American flag should be stripped of their citizenship;
  • Just before “threatening” NBC’s licenses, Trump urged the Senate Intelligence Committee to investigate American news networks for what he calls “fake news.”

The list is far from complete and we are less than a year into this toxic presidency, so it is guaranteed to grow. But these are First Amendment controversies – not crises – because Trump’s simplistic “proposals” are nothing more than angry words.

Vox Ignoramus

Some have worried that even empty rhetoric has an effect, and credit the president’s unceasing attacks on the press with degrading public regard for news organizations and for free speech generally. A recent Washington Post story expressed the concern that Trump has “supercharged” the decay of support for First Amendment principles.

It reported on various polls that included such findings as 46 percent of registered voters believing that major news organizations fabricate stories about Trump, that a similar percentage of Republicans believe the president should have the power to revoke broadcast licenses if their news divisions report “false stories,” and that 28 percent of the general public holds such views.

But what does this mean? The same article reported on a University of Pennsylvania Annenberg Public Policy Center poll showing that 37 percent of respondents could not name even one of the five freedoms protected by the First Amendment (religion, speech, press, assembly, and petition), and that half could name freedom of speech but none of the others. Three quarters of the respondents could not identify the three branches of the federal government.

Some might suggest such findings mean the public has gotten exactly the president it deserves, but the serious answer is that ignorance does not change the law. Just as it is often said that ignorance of the law is no excuse for violating it, scant public understanding of the First Amendment is not a crisis. Nor is it something new.

For the past two decades the Freedom Forum’s First Amendment Center has surveyed American attitudes about freedom of expression and has tracked various issues, including the general level of public understanding of the First Amendment. In this respect, it typically reaches similar findings as those in the Annenberg survey, with few respondents showing deep understanding of the law. Nevertheless, it has found that most Americans instinctively support the concept of free speech in both good times and bad.

Each year the Freedom Forum survey asks whether the First Amendment “goes too far in the rights it guarantees.” The answers often depend on current events and on the issues that concern the respondents most at the time of the survey. In the first report following the terrorist attacks of September 2001, for example, almost half of those surveyed – 49 percent – agreed with the statement that the First Amendment goes too far.

This is not unexpected. Notwithstanding Benjamin Franklin’s sage maxim that those who would “sacrifice liberty for a little security deserve neither liberty nor security,” it has been our experience as a nation that times of great peril put significant stress on our commitment to the liberties for which the country was founded.

But it says a great deal that even in the shadow of 9/11, most Americans – if only a bare majority – believed that the First Amendment does not go too far in the rights it protects. In years not marked by a national crisis, the solid majority of Americans disagree with the statement that the First Amendment’s protections are excessive. The average, in two decades of surveys, was that slightly less than 27 percent responded that the First Amendment provides too much freedom, which means typically about three quarters of Americans are comfortable with broad legal protections for expression – including potentially dangerous speech.

Even after one of the most divisive years in American history, the 2017 survey found that 69 percent of respondents disagreed with the statement “the First Amendment goes too far.” So the moral of this story is that demagogues may come and go but over the long haul Americans will continue to support free speech by a wide margin. The First Amendment has survived the likes of Huey Long, Joseph McCarthy, and Richard Nixon; it will survive Donald Trump.

What to do?

The fact that we will eventually get past this nonsense does not answer the question of the proper response to outrageous and un-American presidential tweets. It is futile to suggest we should simply ignore them since what the president says is, by definition, news. But shouldn’t we demand public denunciation of misguided tweets from those who are being urged to take action, whether in a coordinate branch of government or a regulatory agency?

No, other than to expect public officials to confirm, as did Senator Richard Burr, that the Senate Intelligence Committee “is not going to investigate news organizations,” or to promptly dismiss complaints, as the FCC did when people wrote to the agency about Stephen Colbert’s insulting jokes. To insist otherwise stoops to Trump’s level, and confuses loud or angry words with action.

That said, there are measures that those in official positions can and should take in response to threats that could undermine free speech protections. Trump’s vacuous demand to revoke broadcast licenses will go nowhere, but the FCC does have a number of outdated rules that could be used by a knowledgeable opponent to cause trouble for networks and news organizations even if those rules could never be enforced. Actions should be taken now as a safeguard for those times where the occupant of the White House is not an incompetent buffoon.

Take the Fairness Doctrine, for example, a policy that Trump has said he would like to bring back. That policy, which formally existed from 1949 to 1987, was eliminated during the heyday of deregulation under President Reagan. Throughout its existence, it was used by Democrats and Republicans alike to punish opponents and to exert political pressure on broadcast licensees that would never be allowed for print publications.

Former CBS News president Fred Friendly, in his book The Good Guys, The Bad Guys, and the First Amendment, revealed that the Democratic National Committee funded a campaign in the 1960s to file Fairness Doctrine complaints against largely small, rural broadcasters who aired commentary by religious right-wing commentators – the alt-right speakers of their day – with the goal silencing them. The effort worked. Nearly 400 stations dropped programs of the Rev. Carl McIntire, and others as well.

Notwithstanding this history, prominent conservatives championed the Fairness Doctrine in the 1980s. Big-time donor and political activist Phyllis Schlafly vociferously supported the policy in congressional testimony, saying the Fairness Doctrine was needed “to serve as a small restraint on the monopoly power wielded by Big TV Media” because of what she called “the outrageous and blatant anti-Reagan bias of the TV network newscasts.” Senator Jesse Helms was another strident advocate of the Fairness Doctrine, and conservative groups Accuracy in Media and the American Legal Foundation actively pursued fairness complaints against stations that aired network newscasts.

Despite this sentiment from the political right, Reagan’s FCC started the process that led to the Fairness Doctrine’s demise because of the belief that government oversight of news operations is utterly inconsistent with the First Amendment. Those on the political left strongly denounced the repeal, with some calling Reagan’s FCC Chairman Mark Fowler the “mad monk of deregulation.”

During Barrack Obama’s 2008 presidential campaign the conservative blogosphere lit up with rumors that the Democratic agenda would include reviving the Fairness Doctrine. Such predictions were discounted by progressives such as Acting FCC Chairman Michael Copps, who dismissed the stories as something cooked up by “conspiracy theorists who see [the Fairness Doctrine] lurking behind every corner.”

Tales of the Fairness Doctrine’s imminent return were over-wrought and the policy ultimately was not revived. But some conspiracy theorists might be forgiven for their concerns in light of Copps’s (and others’) longtime support for increasing FCC content regulation. As Copps put it in the very same speech in which he ridiculed the Fairness Doctrine rumors, “we may be launched on an era of reform to match what the Progressives and New Dealers of the last century gave us,” and “we need to act – and I mean act while the tide runs in our direction.” This promise of a new Golden Age of regulation was not fulfilled, but one can only imagine what tools Trump would have at his disposal if Copps had gotten his way.

As it is, now Trump tweets about bringing back the Fairness Doctrine, yet that odd plea is met largely by silence among conservatives. But what does it matter whether or not conservatives chide Trump for proposing a policy that, for Obama, would have been nothing less than a declaration of tyranny? What matters is that the Fairness Doctrine was repealed and it is not coming back. Even if it did, the courts would make short work of it.

Compared to those facts, all the inside-the-beltway noise about presidential tweets and what public officials should say about them means very little. However, it does highlight how public officials should react to irresponsible presidential tweets. Trump’s outbursts offer a window into his troubled psyche, revealing not what he plans to do (or even knows how to accomplish), but what he impulsively would like to see. They should be taken for what they are – warnings about what a petty tyrant would do if given the power.

This means the real answer to Trump’s censorial fantasies should not be words but actions. FCC commissioners who genuinely care about the First Amendment should immediately begin proceedings to repeal some of the remaining relics among the Commission’s rules and policies that distinguish broadcasters from the print media and that could be used as leverage against broadcast journalists.

Two policies that come immediately to mind are the rule against broadcast hoaxes and the news distortion policy. Both have been on the books for decades and are almost never used. In those few cases in which they have been cited, the Commission declined to take action because of sensitivity to First Amendment concerns. And if someone did try to make a serious case under either policy, reviewing courts would almost certainly find that these moribund policies could no longer be justified.

But that is why such policies should be repealed now, before someone tries to misuse them as a tool of censorship. A government (or a proxy) bent on attacking the press can make life difficult and expensive even when its claims are baseless. But it is far more difficult to do so if the levers they would pull have been removed. So it has been with the Fairness Doctrine, and so it should be with any remaining policy that suggests the FCC has any greater authority to regulate broadcast journalism compared to other media.

What we need is less talk, not more. The only true protection against bad leaders is strong institutions whose policies embody the First Amendment’s guarantee against government censorship. Thus, Chairman Pai was right when he told congressional overseers, “if you believe as I do that the federal government has no business intervening in the news, then we must stop intervening in the news business.”

Robert Corn-Revere is a partner at Davis Wright Tremaine LLP and practices First Amendment Law. He formerly served as Chief Counsel to former FCC chairman James H. Quello.