��֭����

Note: Shortly after recording this episode, Nexstar and Sinclair announced they would return “Jimmy Kimmel Live!” to their stations. This is an unedited rush transcript. Please check any quotations against the audio recording.

Nico Perrino: All right, welcome back to So to Speak, the free speech podcast where every other week we take an uncensored look at the world of free expression through the law, philosophy, and stories that define your right to free speech. I am, as always, your host, Nico Perrino. So, it’s been a very busy two weeks for us here at FIREand, consequently, for free speech in America. As our listeners will know, it began with the assassination of Charlie Kirk on a college campus and then that inevitably shifted to an effort to punish people who said insensitive things about the assassination, sometimes at the government’s behest.

If you’re a free speech advocate like we are, you know this happens after every tragedy, whether it’s 9/11, October 7th, the death of Queen Elizabeth, or even Rush Limbaugh. As my colleague Adam Goldstein said on our website, this is the “cancel culture” part of the tragedy cycle. But that’s not where it ended. It continued. It wasn’t long until America’s top law enforcement officer, Attorney General Pam Bondi, said the DOJ would target people who espoused hate speech, which listeners of this show should know is not a category of speech exempted from the First Amendment’s protection.

And then President Trump doubled down on Bondi’s comments, suggesting she should investigate the television network ABC for hate speech. And then, of course, there was the Jimmy Kimmel fiasco. So, on September 15th, Jimmy Kimmel said in the opening monologue to his show –

Recording: We hit some new lows over the weekend with the MAGA gang desperately trying to characterize this kid who murdered Charlie Kirk as anything other than one of them and doing everything they can to score political points from it.

Nico Perrino: Brendan Carr then went on conservative commentator Benny Johnson’s show two days later at 1:01 p.m. Our colleague Tyler Tone timestamped it for us.

Recording: Frankly, when you see stuff like this, I mean, look, we can do this the easy way or the hard way. These companies can find ways to change conduct to take action frankly on Kimmel or, you know, there’s going to be additional work for the FCC ahead. It’s really sort of past time that a lot of these licensed broadcasters themselves push back on Comcast and Disney and say, “Listen, we’re going to preempt. We’re not going to run Kimmel anymore until you straighten this out because we, the licensed broadcaster, are running the possibility of fines or license revocations from the FCC if we continue to run content that ends up being a pattern of news distortion.”

Nico Perrino: Now, as we know hours later, ABC broadcast affiliate Nexstar, which has an acquisition deal before the FCC, announced it would do exactly what Carr recommended and preempt Kimmel’s show. Minutes after Nexstar’s announcement, Disney announced it was pulling Kimmel’s show. And then Sinclair, another network affiliate, made its preemption announcement less than half an hour later. And between Nexstar and Sinclair, they account for somewhere around 23% of ABC affiliates nationwide. Carr then went on to say, “I want to thank Nexstar for doing the right thing. I hope that other broadcasters follow Nexstar’s lead.”

And then Kimmel returns to the air on September 23rd, and Trump condemns this, accusing ABC of making a “major illegal campaign contribution” by returning Kimmel to the air. He said, “I think we’re going to test ABC on this. Let’s see how we do. Last time I went after them, they gave me $16 million. This one sounds even more lucrative. A true bunch of losers,” he continued. “Let Jimmy Kimmel rot in his bad ratings.” So, it’s a lot, but today I want to take a step back and not necessarily talk about the nitty-gritty of the Kimmel situation, per se. That’s been covered elsewhere, including by us.

But rather, I want to take a broader look at the FCC and its authority to regulate broadcast communications and how those authorities may or may not apply to the Kimmel situation. Call it an FCC explainer if you will. And who better to do this with than Anna Gomez, who is an FCC commissioner since September 2023. She has 30 years of experience in domestic and international communications law and policy. Anna, welcome onto the show.

Anna Gomez: Oh, thank you for having me.

Nico Perrino: And then of course, we also have Ronnie London, FIREgeneral counsel. Ronnie, welcome back onto the show.

Ronnie London: Thanks, Nico.

Nico Perrino: And Bob Corn-Revere, ��֭����’s chief counsel, who also happened to serve as legal advisor and later chief counsel to a Federal Communications Commission chairman. Bob, welcome onto the show.

Bob Corn-Revere: Nico, always glad to be here.

Nico Perrino: So, let’s start with the basics. Anna, I want to turn to you. What is the Federal Communications Commission?

Anna Gomez: Well, the Federal Communications Commission is the nation’s communications regulator. What do we do? Besides regulating broadcasters, which really means we provide them the spectrum that they need in order to broadcast and then have some rules around that, we also ensure that everyone across the United States is connected to telecommunications. We license satellites and space systems, commercial.

Nico Perrino: So, like SpaceX’s satellites, for example?

Anna Gomez: Yes.

Nico Perrino: Would that be you as well?

Anna Gomez: Yes, SpaceX and Amazon Kuiper, for example. We also field complaints from consumers and help solve them. We try to address telecommunications, fraud issues, for example, through robocalls and robotexts. And we ensure that public safety has what it needs from a communications perspective in order to serve their communities and that communities have the information that they need in order to respond to emergencies. And finally, we participate internationally to get the spectrum that this country needs for all of the new and innovative services and its existing services through international fora. So, we have kind of a boring portfolio.

Nico Perrino: It doesn’t seem like that right now, does it? But two clarifying questions for our listeners. You said it is the nation’s communications regulator. You’re not regulating this conversation, though, right? It’s certain communications.

Anna Gomez: Yeah. When I’m talking about communications, I’m talking about the mode of communications whether it’s your cellphones or your satellite phones, or your television’s mode of communications.

Nico Perrino: Okay. And this is like a spectrum, also if we’re talking about broadcast communications. So, cable television wouldn’t be within your guys’ purview?

Anna Gomez: We regulate more from a technical perspective. Some of cable but definitely not content.

Nico Perrino: During the Kimmel situation, everyone was kind of looking at the FCC’s website or maybe just looking at X and saying, “Look, the FCC has the authority to do this and that. And this is why they can go after Disney or the network affiliates like Nexstar and Sinclair.” They say there are certain conditions if you’re going to receive access to the spectrum that you must abide by if you are going to have that spectrum license. Bob, what’s the general framework for regulating the spectrum? What do these broadcasters have to abide by?

Bob Corn-Revere: Well, first of all, it’s a general mandate. The public interest standard is part of the Communications Act. It has been since 1934 or 1927, if you go back to the Radio Act. And basically, it says that those who receive federal licenses are required to provide service to the public. Now, within that, there are very limited ways in which the federal government can regulate content. And that’s been recognized from the beginning.

The public interest standard isn't this blank check that regulators can use to go after content they don’t like. And so, what has been conflated in all of this discussion, since the Kimmel incident – and before then, too, but especially since then – is that somehow people believe that the FCC’s mandate empowers it somehow to be the nation’s speech police, and it was never designed to be.

Nico Perrino: But it can police some speech, right? Like, for example, we know pornography is protected by the First Amendment. Can an ABC affiliate, for example, broadcast porn? Or we know the Pacifica case, George Carlin's seven dirty words. So, I’m going on social media, and people are like, “Oh, the First Amendment applies to broadcast communications. What about pornography? What about George Carlin’s seven dirty words?” So, what do we think about that?

Bob Corn-Revere: Well, that’s right. Even that is limited, though, because there’s a general First Amendment protection for sexually oriented speech until it crosses the obscenity line. But indecency is a specialized category that applies to broadcasting but not to other media, but even that is limited. And the Supreme Court recognized that in the Pacifica case, which involved George Carlin’s seven dirty words. I said that the FCC cannot ban these words; it can only channel them to later at night.

Nico Perrino: Oh, okay.

Bob Corn-Revere: And what is defined as indecency, well, it’s supposed to be very narrow. The FCC has a checkered history on that, as I could go into in some detail, but won’t. And those limited areas of regulation are not as expansive as the Twitter mobs are saying, certainly not. And not as expansive as the current chairman of the FCC is saying.

Nico Perrino: This concept, Ronnie, of indecency, Ira Glasser, who used to run the ACLU, somewhat of a mentor of mine, when I was talking to him about the efforts to regulate the internet in the 1990s, which the ACLU was kind of leading on, had this line. He said, “Early law is like cement. If you let it sit too long, it hardens.” And my understanding is they tried to apply these indecency standards to the internet.

Bob Corn-Revere: That’s exactly what they tried.

Nico Perrino: And said that you can’t. So, how does it get that you can regulate indecency on broadcast communication, and it’s like the only mode of communication where this is an exception to the First Amendment, putting obscenity to the side?

Ronnie London: Well, let’s be clear. Let’s not treat the internet as something special in that regard. They tried to regulate indecency on the phone lines, dial-up porn. The Supreme Court held it was unconstitutional. Tried to regulate indecency on cable, the Supreme Court held it was unconstitutional. The next thing that came around was the internet, and tried to regulate it there.

The Supreme Court held it was unconstitutional. And that’s the thing to remember, that indecency is fully protected speech. And the thing about the broadcast medium is that, as Anna said, you have a license to use public airwaves. There have been, I would say, varying rationales for why there can be content controls on broadcasting. At some point, it was the scarcity rationale.

Nico Perrino: The scarcity rationale, this is the rationale that there's a limited spectrum?

Ronnie London: Right. Another way it comes unbidden into your home is as if you’re picking it up based on your feelings, and you don’t have to buy a TV or a radio and tune into a given station but put that aside. Another one is you’re using a public good, and therefore, you take on certain obligations in using the public good. Whatever you think of those various rationales, they are certainly unique to broadcasting. And that’s how you get certain content regulations. I mean, it’s not just indecency regulations. There are other obligations, equal time, at one point, the Fairness Doctrine.

Nico Perrino: We’re going to get into those.

Ronnie London: Yeah, but they never would have flown on any other medium. And the Supreme has actually held in cases like Tornillo, that the things that you might require broadcasters, you can’t require in other mediums.

Nico Perrino: So, Bob, you brought up this public interest standard. And this is something that Brendan Carr brought up also. He said, “I want to thank Nexstar for doing the right thing. Local broadcasters have an obligation to serve the public interest. While this may be an unprecedented decision, it is important for broadcasters to push back on Disney programming that they determine falls short of community values. I hope that other broadcasters follow Nexstar’s lead.” Anna, this idea of representing the community, these affiliates, how does that intertwine with this public interest standard?

Anna Gomez: It doesn’t. I mean, it does, and it doesn’t. So, we have what I call three pillars of our broadcast policy: localism – which is serving your community, but it doesn't mean censoring content to serve the public interest – competition, and diversity of viewpoints. And I agree with Bob when he says the public interest is not some flexible thing where we can just say, “Well, I don’t like that content and so therefore it’s against the public interest for us to show it or send it to listeners.”

And so, I think this misuse of the public interest standard is really kind of a misdirection and an excuse to be able to stop certain types of content. And that’s what we keep saying, and it’s really problematic. The one thing that you said that I don’t agree with you is there is no exception to the First Amendment.

Nico Perrino: I said exemption. When we were talking about hate speech?

Ronnie London: Now we’re getting to a whole other area.

Anna Gomez: There’s no public interest exception to the First Amendment for licensed broadcasters.

Nico Perrino: Yeah, okay.

Anna Gomez: Now, there are some regulations that have been found constitutional, for example, for the protection of children, but it’s not a general exception that the First Amendment doesn’t apply because we have a public interest standard in the Communications Act. That’s not how it works.

Ronnie London: Yeah, I mean, we’ve talked about before in other podcasts about the idea of unprotected speech versus regulatable speech, just because speech that doesn’t fall into a category of unprotected speech can be restricted or prohibited in circumstances, it doesn’t turn it into unprotected speech. It just means that the government has met the relevant standard applicable, usually strict scrutiny if it’s content-based. But they’ve met the relevant standard in order to regulate it in that circumstance, but it’s still protected speech.

Nico Perrino: Got it. Got it. Okay, so that’s the public interest standard. What about this Fairness Doctrine idea, equal time opportunity? So, President Trump said that Jimmy Kimmel and all these late-night hosts, for example, pretty much only have liberals or Democrats on as guests. They’re all of the same political persuasion. And this suggestion, at least from his Truth Social post, is that therefore they’re pretty much in the bag for the Democratic National Committee. They’re partisans, and I guess then they’re in violation, presumably of the Equal Time Opportunity Rule. He used the word illegal campaign contribution. But what’s the responsibility here of broadcasters?

Bob Corn-Revere: Well, you see, that’s the problem. All you’re hearing from either the president or Vice President Vance or from Chairman Carr is sort of a mashup of various concepts that don’t add up to anything. The public interest standard was really drawn from railroad regulation when it was adopted in the Communications Act. And that was because they wanted to have some standard for line extensions for railroads. And so, they just simply borrowed that standard. It’s an umbrella standard. And then it’s operationalized through various rules, some of which you’ve just mentioned to regulate content.

But again, the public interest standard has always been interpreted by the courts as requiring a sensitivity to First Amendment values. Section 326 of the Communications Act specifically deprives the FCC of any power of censorship. And so, when you see from time to time various policies that touch on content, whether it’s the Fairness Doctrine, and we can talk more about that, or the news distortion policy, which really, for all intents and purposes, doesn’t exist until recently, then all of those have to be applied very narrowly and very carefully. And it’s not just some random tweak that the chairman gets to put out there what he would prefer broadcasters to air on their stations.

Nico Perrino: But hold on, let me just clarify something. You said the Communications Act itself prohibits censorship, but we already said that there are certain compelling interests here in this context where they can censor.

Bob Corn-Revere: Oh, the irony.

Nico Perrino: I mean, let’s not pretend that they can’t, at least based on current case law and some of these rules that we’re discussing. It’s just how do you draw those lines, and why are they so unique to broadcast?

Bob Corn-Revere: Well, but the examples in history are really the exceptions rather than the rule. The rule is no censorship as part of the overall public interest mandate.

Nico Perrino: So, we start from that premise.

Bob Corn-Revere: You start from that premise, and then you look at particular policies. You mentioned indecency. And again, you cannot prohibit speech. You can require it if it falls into that category to be at certain times of the broadcast day, but the general rule still is no censorship. And then there are certain policies – and we can talk about them individually if you’d like – whether it was the Fairness Doctrine, which was repealed in 1987.

Nico Perrino: What is the Fairness Doctrine?

Bob Corn-Revere: The Fairness Doctrine was an obligation – it was articulated by the Commission in 1946 – that required broadcasters to air reports on controversial issues of public importance and to do so in a balanced way. It existed between 1946 until the mid-1980s, when a principled Republican chairman of the FCC, Mark Fowler, decided that it was in conflict with the First Amendment and set the Commission on a path toward repealing it. It took several years to do it, but they did. All of these other policies that come from that, like the news distortion policy, are simply vestiges and holdovers that don’t justify the kinds of regulation that it is being presented as.

Nico Perrino: Hold on. So, is there a difference between the Fairness Doctrine and then this equal time and opportunity?

Bob Corn-Revere: Yes, yes. That’s part of the Communications Act. Section 315 of the Act requires that if broadcasters are going to have candidates from public office on that they –

Nico Perrino: And it’s just candidates for public office?

Bob Corn-Revere: Yes, yes.

Nico Perrino: Okay.

Bob Corn-Revere: Which is one of the reasons why I said this is a mashup, the way these concepts are being thrown around. It only applies to candidates for public office. If a station allows a use by a candidate, then it’s required to allow the opportunity for equivalent time. Equal time is a sort of misnomer.

Nico Perrino: So, that’s what came up when Kamala Harris went on SNL, right?

Bob Corn-Revere: That’s right.

Nico Perrino: And then they made good on that by giving Trump free ad space. It was like a NASCAR event or something.

Bob Corn-Revere: During a NASCAR event, right. So, there was never a violation of the rule; there was simply an allegation that the rule had been violated. The complaint was properly dismissed and then brought back from the grave by Chairman Carr as one of his first acts upon becoming chairman.

Ronnie London: And to be clear, it generally involves having to have an actual appearance of the candidate on the programming.

Nico Perrino: That would have happened during SNL.

Ronnie London: Yes. And the Commission has always maintained some fairly broad exceptions to the rule for things like news broadcasting documentaries and things like that which talk shows – not to denigrate it but – even like Jimmy Kimmel would fall under typically the biography series on A&E. I mean they were very solicitous towards making sure that being able to talk about candidates and to show the candidates while you’re talking about them, if you’re talking about them for commentary purposes isn’t going to automatically trigger an opportunity for the candidate to say, “Okay, I get this amount of time at roughly the same time or an equivalent broadcast.”

Bob Corn-Revere: Right. So, even a show like The Howard Stern Show is considered to be exempt from news interviews under that policy, under that section of the Act.

Nico Perrino: Anna, just some nitty-gritty on how the FCC actually works. There needs to be a complaint for the FCC to take action. Is that correct?

Anna Gomez: No. We can self-initiate complaints, but we do respond to complaints.

Nico Perrino: Because some of these complaints around the Kamala Harris interview, what was that? Was that CBS? That was filed by …

Bob Corn-Revere: Center for American Rights.

Ronnie London: CAR.

Nico Perrino: Yes, okay. But you guys can self-initiate complaints as well?

Anna Gomez: Yes, we can, but we do have a complaint. And I think it’s very important to note, by the way, with the Equal Time Rule that the candidate that wants to take advantage of the Equal Time Rule actually has to ask for that equal time. Unlike the Fairness Doctrine, where the broadcaster is the one that has to ensure that it presents all sides of the issues, and that used to lead to having both sides represented – it reminds me of SNL skits back in the day – they have to ask for it. And one of the reasons why it’s so ridiculous that the FCC reinitiated the investigation on the SNL skit is, as you noted, NBC gave the equivalent time.

And it wasn’t just NASCAR; it was two programs that they gave. And I can’t remember what the other one was. So, they went overboard to make sure that they addressed that. But when they complain about this, it’s because they just want to complain about bias. And bias in this administration means anyone we don’t agree with getting any kind of coverage. I call it viewpoints.

Nico Perrino: Well, so is it the networks themselves that you’re taking action against, or is it ABC? Is it NBC? Is it CBS or is it these local affiliates that are run or owned by Nexstar and Sinclair?

Anna Gomez: That’s exactly the right question to ask because we don’t regulate the networks. Our regulations stem from the licensing of the local broadcast stations.

Nico Perrino: So, these are the people who own the spectrum or license the spectrum.

Anna Gomez: Yes, whether they’re owned by Nexstar or Sinclair or wholly owned affiliates of the networks, we only regulate. And that’s really important, particularly when you’re talking about the news distortion rule. It’s not a rule, sorry. The news distortion policy. It is very limited. You have to show intentionality to mislead or distort the news by the licensee. And it’s really the leadership of the licensee. It is very difficult to show news distortion for a good reason. So, every time that we get thrown out that something is a violation of the news distortion rule, I cringe a little because it does not really meet the standard for news distortion.

Nico Perrino: I was struck by an exchange that I saw on CNN between Brad Todd and Abby Philips. We’re going to play it here now.

Recording: I mean, why does it have to be equal opportunity for jokes? I mean, why can’t he just tell whatever jokes he wants to tell? Well, he can say whatever he wants, but the stations that carry him operate with the public interest obligation. They only get to hold those frequencies if they’re working in the public interest. Their news programs on those stations have to give equal time to both sides.

Nico Perrino: So, this kind of summarizes the two topics that we’ve talked about, public interest and equal time. I’m assuming from what I’ve heard Brad Todd is wrong.

Ronnie London: Where to start.

Bob Corn-Revere: There’s nothing about what he said that was right. Even the punctuation is wrong. I mean to say that there has to be some kind of equal time or Fairness Doctrine for jokes is on its face absurd. And you saw that in Brendon Carr’s comment in the Benny Johnson clip, where he says that the local stations have to decide whether or not this is in the public interest, because this could be news distortion.

I’m sorry, late-night monologues have nothing to do with news distortion. They’re not news. And the FCC’s regulations simply don’t extend to them, and their policies have nothing to do with them, which is why I say this is all being presented as just sort of a mashup of concepts as if they’ve been thrown into a blender and spit out as some sort of justification to use federal clout to put pressure on the networks.

Nico Perrino: Go ahead, Ronnie.

Ronnie London: No, I mean, and it’s particularly important, I think, especially now, to pay attention to what is specifically provided for in the Communications Act by statute and what’s a rule and what’s a policy. I mean, on some levels, you have to feel a little bit of sympathy for Chairman Carr because he’s kind of like the kid who showed up at the party after all the beer was gone. He’s the first chairman post-Loper Bright. There’s no more agency deference anymore. So, now he doesn’t have the benefit of all his previous chairmen of getting some degree of deference in the courts. The courts are going to look to the statute specifically to see what the statute allows.

And P.S., in the statute, it says in Section 326, “The Commission shall have no power of censorship over broadcast programming and can’t regulate broadcast programming other than as specifically provided for in the Act.” So, it’ll be interesting to see the first FCC case that gets up to a circuit court that involves broadcast or any other programming, for that matter, and what the courts do with that.

Nico Perrino: I want to turn now to another kind of confusing regulation, rule, guidance, I don’t know, ethereal. I don’t know what it is, but there was something being thrown around on social media in the wake of the Kimmel stuff about a broadcast hoax rule. And I want to read some of what people were throwing around. It says, “The Commission’s prohibition against the broadcast of hoaxes is set forth at Section 73.1217 of the Commission’s rules, 47 CFR 73.1217.

This rule prohibits broadcast licensees or permittees from broadcasting false information concerning a crime or a catastrophe if 1.) The licensee knows this information is false 2.) It is foreseeable that the broadcast of the information will cause substantial public harm and 3.) Broadcast of the information does, in fact, directly cause substantial public harm.”

It continues, “Any programming accompanied by a disclaimer will be presumed not to pose foreseeable harm if the disclaimer clearly characterizes the program as a fiction and is presented in a way that is reasonable under the circumstances. And for purposes of this rule, ‘public harm’ must begin immediately and cause direct and actual damage to property or to the health or safety of the general public or diversion of law enforcement or other public safety authorities from their duties.” This is what people were saying Jimmy Kimmel’s joke implied.

Bob Corn-Revere: I mean, I either want to just laugh or for my head to explode. This has absolutely nothing to do with a late-night monologue. This is one of those holdovers, as you mentioned, if you let bad ideas sit around long enough, they’re like concrete and they harden. This is something that was a vestige of the 1938 War of the Worlds broadcast from Orson Welles, where a lot of people panicked over a fictional newscast style that was a –

Nico Perrino: An alien invasion, right?

Bob Corn-Revere: An alien invasion based on H.G. Wells’s book but updated for radio and done on Halloween at night. And so, some people took it as real and panicked. And so, naturally, the FCC adopted a rule. It’s been used –

Nico Perrino: Decades later, I think.

Bob Corn-Revere: Yeah, but eventually it was used as the inspiration for that. And it’s maybe been applied once or twice. It’s kind of like a Bigfoot sighting to see whether or not this applies. And it has absolutely nothing to do with any of these current events.

Ronnie London: The attempt to use that language in the current circumstance is, in some ways, kind of this outgrowth that we’ve seen on college campuses for years here at ��֭����, where you have these speech codes and they talk about harm or health. Here, it’s the health or safety of the general public, and that gets bastardized into having your feelings hurt by a viewpoint that you don’t like. I mean, that’s really kind of what’s going on here in revoking the rule, because as Bob says, if you read it and as you just read it, there’s no way it begins to apply to anything like this.

Nico Perrino: Well, yeah, I’m reading it, and it seems to essentially articulate a Brandenburg standard more or less, which is the exception to the First Amendment for incitement to imminent lawless action. It must begin immediately and cause direct and actual damage to property or to the health or safety of the general public.

Bob Corn-Revere: And part of this is that so much of this discourse is taking place in social media exchanges. And so, you get a word that’s taken from a policy, and you throw it in with whatever your attitude is. And that’s how this debate is proceeding. There’s no actual rigor or nuance to any of this discussion about what the actual law is.

Nico Perrino: Okay, so that’s the broadcast hoax rule. We’ve mentioned news distortion a few times. Brendan Carr said at the Concordia Summit in New York on the 22nd, I think this after or just before Jimmy Kimmel went back on the air, he said …

Recording: What I spoke about last week was that when concerns are raised about news distortion, there’s an easy way for parties to address that and work that out. And in the main, that takes place between local television stations that are licensed by the FCC and what we call national programmers like Disney. They work that out, and there doesn’t need to be any involvement of the FCC.

Now, if they don’t, there’s a way that’s not as easy, which is someone can file a complaint at the FCC, and then the FCC, by law as set up by Congress, has to adjudicate that complaint. And what I’ve been very clear in the context of the Kimmel episode is the FCC and myself, in particular, have expressed no view on the ultimate merits.

Nico Perrino: Anna, what is the news distortion rule, or is it a rule at all? I’m very confused about what’s a rule, what’s guidance, what’s not.

Anna Gomez: It’s a policy.

Nico Perrino: It’s a policy, okay.

Anna Gomez: It’s a policy, but I have to admit I slip into calling it the news distortion rule because that’s just what people call it.

Nico Perrino: Colloquially.

Ronnie London: Yeah, colloquially.

Anna Gomez: It’s colloquial, yes. I don’t remember the exact language of what the FCC rules say, but as I said, it involves, first of all, a matter of – I can’t remember the exact phrasing – a significant news event and the deliberate distortion of a matter of a significant news event – and this I’m paraphrasing because I don’t remember the exact language – by the management of the broadcaster, the station that is licensed.

Bob Corn-Revere: It is a policy that emerged in the late 1960s and early 1970s, and it was adopted in response to coverage of the 1968 Democratic National Convention. It was essentially articulated as something of a corollary of the Fairness Doctrine. But even then, the FCC, at the height of its regulatory powers in this area, when it was articulating the rule, said this is not to give us supervision over the news. The most liberal FCC commissioner who has ever sat in that agency, Nicholas Johnson, was the commissioner at that time, along with one of the more conservative FCC chairmen in history, Dean Burch, who had been chairman of the Republican National Committee.

The two men hated each other, but there was one thing they agreed on. They said you cannot use this policy to police whether or not newscasters are editing their shows in the right way. Precisely the kind of misuse of the news distortion policy that this FCC did with 60 Minutes, which is being used as sort of a club hanging over broadcasters’ heads, even over talk show monologues. It’s absurd.

Nico Perrino: And it seems as though under the first Trump administration, the FCC understood this. Now there was a complaint from the free press. I believe, looking at the letter here, the complaint was with regard to the public interest authority and broadcast hoaxes, but it seems to suggest that there was some sort of distortion or false speech around COVID-19. And in the response letter, the FCC said, “At best, the petition rests on a fundamental misunderstanding of the Commission’s limited role in regulating broadcast journalism. And at worst, the petition is a brazen attempt to pressure broadcasters to squelch their coverage of a president the Free Press dislikes and silence other commentators with whom the Free Press disagrees.

Free Press asserts that the Commission ‘has a duty to rein in broadcasters that seed confusion with lies and disinformation,’ but the Commission does not and cannot,” it continues, “and will not act as a self-appointed free-roving arbiter of truth and journalism.” That seems to be pretty definitive on how you look at this stuff. And now I know it mixes broadcast hoaxes, but it all seems to be kind of one piece.

Bob Corn-Revere: But it’s definitive and it’s exactly right. And shame on Free Press for having filed that.

Nico Perrino: This isn't like Bari Weiss’s The Free Press. Is this something different?

Bob Corn-Revere: No, no, no, this is something different. They’re an advocacy organization. But it’s the one thing that Brendan Carr has said that makes sense in a way when he says, “I’m just doing what Democrats did. I’m just doing what others who advocated for the public interest to be used in this way, to use it now in this context.” The problem is, at the time, Commissioner Carr condemned petitions like that, complaints like that, when saying they were a violation of the First Amendment. So, at best, he’s merely a hypocrite, and at worst, he has simply chosen to violate his oath of office to uphold the law and the Constitution.

Nico Perrino: Ronnie?

Ronnie London: Yeah, so at the time they adopted the policy, this is what the Commission said, “In this democracy, no government agency can authenticate the news, nor should it try to. We will therefore eschew the censor’s role, including efforts to establish news distortions in situations where government intervention would constitute a worse danger than the possible rigging itself.” That’s upon the policy’s adoption, okay?

Now, it still says right now, if you go to the FCC’s webpage on news distortion, it says, “Its authority to take action on the accuracy or bias of news stations, network stations, reporters, or commentators, and how they cover the events is narrow. The FCC is prohibited by law from engaging in censorship or infringing on First Amendment rights of the press, which include but are not limited to a broadcaster’s presentation of news or commentary.” That seems pretty straightforward to me at the beginning and now.

Bob Corn-Revere: And by the way, even that narrow authority rested on the premises that existed under the Fairness Doctrine. It’s an offshoot of that. And the Fairness Doctrine hasn’t existed in decades.

Nico Perrino: To Brendan Carr’s comments at the Concordia Summit, he said he has expressed no view on the ultimate merits of some of the claims that have been made. It’s kind of hard to believe because it seemed like he was celebrating posting memes on social media.

Bob Corn-Revere: It’s not just hard to believe, it’s impossible to believe. It’s like the old Groucho Marx line, “Who are you going to believe, me or your own two eyes?”

Nico Perrino: Let’s close here by talking about the role of affiliates and the role of networks. So, as of this recording, it might change. Sinclair and Nexstar are preempting, I think that’s industry lingo for not showing Jimmy Kimmel’s broadcast every night. I saw somewhere that they can’t do this for long because often in the contractual relationships between affiliates and networks, you can only preempt so many times.

And it only allows for preemption because there’s maybe some sort of significant news breaking, and so you want to cut into the news, or maybe there’s a state funeral or something, I don’t know. But this sort of ongoing saying we’re just not going to show this programming because we don’t like it ideologically, Anna, is that something that is usually foreclosed by these contracts?

Anna Gomez: Yes, this is a private contractual matter now. And I want to make that clear because forced speech is also censorship. So, the FCC can’t tell Sinclair and Nexstar that they have to carry this content. So, yes, it is a matter of their contracts with Disney.

Nico Perrino: But I don’t think a lot of people understand that perhaps in these contracts, these agreements exist. And so, I think most in the general public, I think Nexstar and Sinclair will just continue to not show Kimmel indefinitely until the network does something about that. But then they potentially risk losing football broadcasts, right? It opens up some possibilities for these networks to maybe give a different affiliate, I don’t know, access to the programming.

Bob Corn-Revere: Well, it does open up some possibilities. There’s a reason why local stations affiliate with networks. That’s where the programming is. That’s where the attractive programming is. It’s what makes their stations more valuable. And so, a decision to preempt broadcasting or preempt a particular show is something they have a limited right to do. And as Anna points out, it is enshrined in the contracts between affiliates and the networks. But how long do you think a local station is going to want to put on Family Feud instead of, for example, the Kimmel show or something else?

They are going to, in the longer term, lose money. And preemptions like this have been specialized, isolated events in the past. So, for example, in earlier years, there were some southern stations, southern affiliates that would not run network shows that had, say, Black characters. And they would say that, “We’re serving the needs of our local community.”

Or, for example, in 2004 or 2005, I’m trying to remember which, Sinclair preempted Nightline because it had a show where they were reading the slain veterans in the Gulf War, and Sinclair didn’t want to do that for those Nightline broadcasts. But this is a blanket preemption saying, “We don’t like this show because of things that he said.” And that is extremely unusual.

Ronnie London: Yeah, I seem to remember when NYPD Blue premiered, there were a can full of ABC affiliates that objected to the first bare butt on broadcast television, and they refused to carry the show. And I think that lasted a couple of episodes.

Bob Corn-Revere: Yeah, something like that. I think it was three Texas stations or something like that.

Anna Gomez: When we talk about local broadcasters, we’re not talking about mom and pop shops that are really run by their local communities. We have corporate behemoths that own them. And what you’re seeing is they’re imposing their values on these local broadcasters, which is their right. But that is why diversity of viewpoints is one of our goals. And that’s why we have this danger of further consolidation, because what you will have is the imposition of one point of view on stations that are owned by these broadcasters or broadcasting behemoths.

Nico Perrino: Well, that’s a really interesting point because when we learned that Nexstar and Sinclair were going to continue to preempt when Jimmy Kimmel came back on, I asked Ronnie, I was like, “Oh, well, let’s watch Kimmel tonight.” Then we were like, “Wait, Nexstar and Sinclair, do they own the DC area affiliate?”

Ronnie London: WJLA.

Nico Perrino: WJLA. They do, and it’s hard to believe, given the way this community votes, that they’re representing the community values by not broadcasting Kimmel.

Ronnie London: You know where I ultimately had to watch the monologue? On cracked.com the next morning. That’s what it’s come to.

Anna Gomez: I don’t know what that is.

Ronnie London: Remember MAD Magazine?

Anna Gomez: Oh, yeah.

Ronnie London: Cracked was the poor man’s MAD Magazine.

Bob Corn-Revere: This was the knock-off version of MAD.

Ronnie London: Right, and it stopped in print a long time ago, but once the internet came on, it just exists as a website. That’s where I saw the monologue.

Nico Perrino: You talk about corporate behemoths, right? One of the things that’s floating in the background here is my understanding that Nexstar is asking for an acquisition that would give it more than, like, what, 39%?

Bob Corn-Revere: Up to 80% reaching US households.

Nico Perrino: US households, which the current Commission rules, if I understand correctly, wasn’t allowed for. So, they’re asking for an exemption here. And this will be a huge behemoth, right?

Bob Corn-Revere: And the Commission is going to address this next week in the quadrennial review of the FCC’s ownership rules. But again, it is an indication of the kinds of regulatory leverage that the FCC has over these kinds of business judgments. So, when the FCC chairman talks about what kinds of affiliate choices he would like to see, then those who are beholden to the FCC tend to listen.

Nico Perrino: So, I want to talk about what’s next here, kind of wrap up. There are three points I want to hit. One that you kind of brought up, Anna, I know there are some congressional inquiries into some of these affiliates. Does that raise compelled speech concerns with you as well that they’re looking into this? They’re trying to put pressure on these affiliates, maybe to bring Kimmel back.

Anna Gomez: So, I often hear that, “Well, they do it too, so therefore I should, I guess, commit the wrong thing also.” I see what Congress does as oversight. They don’t have the regulatory authority to pull a license or to try to find them. So, you can say that pressure is inappropriate. And in fact, maybe you guys are the First Amendment experts; it may be more important to ask you guys.

Nico Perrino: Yeah, the congressional oversight question is interesting from a First Amendment perspective because you have jawboning, which I want to talk about next.

Anna Gomez: Yes.

Nico Perrino: But also, the purpose of Congress is to provide oversight. So, where is that line between the two?

Bob Corn-Revere: Well, it is to provide oversight, but it’s oversight of the government operation of the agency. And so, I think the appropriate role for oversight is to find out what the hell Brendan Carr thinks he’s up to when he thinks he can threaten broadcast stations and find out what communications he has initiated and he has had with various industry players. That’s the proper function of oversight.

Ronnie London: Well, I mean, the idea that they should bring ABC in to ask them, “What made you make the decision you made? What were your communications with the Commission?” It’s like, ask the Commission. You guys hold their purse strings and their statutory authority.

Bob Corn-Revere: That’s like saying to ABC you should have known better than to wear that short skirt.

Nico Perrino: Well, Ronnie, on the jawboning question, so this is the idea that the government kind of says, “You have to do this or else,” or “We can do this the easy way or the hard way,” to put it another way. What sort of First Amendment implications stem from perhaps what Brendan Carr had said just before Nexstar pulled or preempted Kimmel, and then Disney pulled the broadcast?

Ronnie London: Yeah, no, if only we had a recent Supreme Court case that dealt with exactly this kind of scenario.

Nico Perrino: And if only it was 9-0, so it was just clear this is what the law was.

Ronnie London: I mean, so NRA v. Vullo, the Supreme Court held that New York’s insurance and financial services commissioner, by leaning on insurance companies that did business with the NRA because you didn’t like the NRA’s pro-gun message, would violate the First Amendment under banned books and its progeny. I mean, this is almost a direct recasting of that.

You’ve got Brendan Carr and the Vullo role. You’ve got the ABC in the insurer’s role, and you’ve got Jimmy Kimmel in the NRA’s role. And you’ve got the regulator who doesn’t like what the NRA, the speaker, Jimmy Kimmel is speaking, so you lean on someone who they do business with in order to get them silenced. I mean, I don’t know if it could be clearer.

Nico Perrino: Last question here before we wrap up. So, I read a headline from Pirate Wires, which is this kind of tech online publication. And the headline read, “Broadcast TV is obsolete. Let’s auction the public airways.”

Ronnie London: Which justice asked us that at the indecency …

Bob Corn-Revere: Alito.

Ronnie London: Alito, yes.

Bob Corn-Revere: Basically, “Why do I have to decide this? Why can’t we wait until this industry dies?” I mean, there’s a reason why the framers of the Constitution basically didn’t want a licensed press because they saw what had happened in Britain under that regime. And so, with broadcasting, because it was a new technology, we decided to try to ignore what the farmers said and say, “Let’s put the government in charge of this. What could possibly go wrong?” Well, a lot as it turns out. And that could be the subject of a whole other podcast. But if you do provide for ownership of spectrum, then you would avoid these problems.

Nico Perrino: I don't know, Anna, if I want to put you on the spot or if you’re willing to talk. I mean, what is your perspective on that question?

Anna Gomez: I think that over-the-air broadcasting still serves a very important public interest. I’m sorry to say that. But no, there’s plenty of parts of this country that actually don’t have broadband access, for example, and they can’t get streaming or cable.

And they really do rely on broadcasting, but a lot of them rely on public broadcasting, which we have not talked about the fact that this administration seems intent on shutting that down as well. And it’s really important during times of emergencies that people can get access to information so that they can know what to do in case there is, for example, a tsunami that’s going to hit Hawaii, possibly. It didn’t happen, but it was the public broadcaster that gave people the information they needed to know to go to higher ground.

Nico Perrino: It’s funny you say that. I recently bought one of those crank radios, so if you don’t have electricity in times of emergency, I can still get emergency communications over the radio.

Bob Corn-Revere: But Anna made exactly the right point. The entire purpose of the FCC, back when it was created, was to make sure that the entire country was served with free over-the-air radio services. And that really is the public interest. The public interest isn't the whim of a particular regulator about what kind of programming he’d like to see. It’s to make sure that people can get service. And if there’s a justification for licensing, maybe that would be it. The deal is you get this use of the electromagnetic spectrum without having to pay a fee for it, and in return, you provide free service to the public. That’s the end of the government’s interest.

Anna Gomez: And what worries me is we are losing our civic engagement when we nationalize the news. We really need communities to be informed about what’s happening to them in their communities. So, this is my defense of local broadcasting in particular. We’re losing newspapers. Everyone is getting their news through TikTok. And by the way, a lot of the news that they get through TikTok was originally by journalists from broadcasting stations. So, it's important that we continue that.

Nico Perrino: We’re going to leave it there, folks. That was FCC commissioner Anna Gomez and ��֭����’s Ronnie London and Bob Corn-Revere. I am Nico Perrino, and this podcast is recorded and edited by a rotating roster of my FIREcolleagues, including Sam Lee, and it is produced by Sam Lee. To learn more about So to Speak, you can subscribe to our YouTube channel or Substack pages, both of which feature video versions of this conversation.