The Federal Communications Commission (FCC) is conducting an unseemly and unconstitutional spectacle, ostensibly to determine whether CBS violated its policy against “news distortion” by editing a 60 Minutes interview with then-Vice President Kamala Harris. Its real purpose is to exercise raw partisan power.
The FCC already knows CBS did not violate any rules and merely engaged in everyday journalism. And there is nothing to be learned from the over 8,000 comments and counting that have poured into the commission’s inbox. Many simply registered their like or dislike of the network and mainstream media in general, and many others were just unserious quips submitted to troll the regulators.
But judging the merits of the “news distortion” allegation was never the point. The FCC staff already dismissed the complaint—filed by a partisan activist group—as fatally defective back in January. As outgoing FCC Chairwoman Jessica Rosenworcel explained, “The FCC should not be the President’s speech police….The FCC should not be journalism’s censor-in-chief.” But one of Brendan Carr’s first acts as the new FCC chair in Donald Trump’s administration was to reinstate the complaint and call for public comments.
Asking members of the public to “vote” on how they feel about a news organization’s editorial policies or whether they think the network violated FCC rules is both pointless and constitutionally infirm. In 1943, Justice Robert Jackson wrote that the right to free speech and a free press “may not be submitted to vote; they depend on the outcome of no elections.”
The FCC’s reanimated proceeding lacks any legitimate regulatory rationale. But its realpolitik purpose is sadly transparent. This fishing expedition is designed to exert maximum political leverage on the CBS network at a time when Trump is engaged in preposterous litigation over the same 60 Minutes broadcast, claiming CBS’ editing violates a Texas law against fraudulent commercial transactions. Adding to the pressure, Chairman Carr said he will consider the thousands of comments in this proceeding when evaluating whether to approve a merger of Skydance Media and CBS parent company Paramount Global worth billions of dollars.
There is nothing here for the FCC to investigate. The complaint alleges that Harris gave a “word salad” response to a question about whether Israeli Prime Minister Benjamin Netanyahu was listening to the Biden administration and that CBS edited it to make her sound more articulate. One part of her responses was aired on 60 Minutes and another part aired on Face the Nation.
In short, CBS stands accused of committing journalism. Every day, from the smallest newspaper to the largest network, reporters and editors must make sense of and condense the information they collect—including quotes from politicians and other newsmakers—to tell their stories concisely and understandably. That task necessarily requires editing, including selecting what quotes to use. If the cockamamie theory underlying this FCC “investigation” had any merit, every newsroom in America would be a crime scene.
That’s why the FCC in the past has never defined the editing process as “news distortion.” In fact, the commission made quite clear when it first articulated the news distortion policy in 1969 that “we do not mean the type of situation, frequently encountered, where a person quoted on a news program complains that he very clearly said something else.” It stressed, “We do not sit to review the broadcaster’s news judgment, the quality of his news and public affairs reporting, or his taste.”
The commission understood that this very narrow approach is required to respect both the First Amendment and the Communications Act, which denies the FCC “the power of censorship.” As the FCC observed, “In this democracy, no Government agency can authenticate the news, or should try to do so.”
There is a name for what the FCC is doing in this proceeding: a show trial. When investigations become a performative exercise designed to further a political purpose, they forfeit any claim to legitimacy. Show trials are intended to send a message, not just to their unfortunate victims, but to other would-be transgressors.
There is a dark and deadly history of such proceedings in authoritarian regimes around the world, ranging from Josef Stalin’s purges of perceived political opponents to China’s trials of “rioters and counterrevolutionaries” after the 1989 Tiananmen Square protests. Though less extreme in nature, during the Red Scare, the House Committee on Un-American Activities similarly staged show hearings where they pressured witnesses to name names while presuming guilt. The stakes of a sham FCC proceeding may differ, but the tactics and perversion of the rule of law are the same.
Somewhere along the way, the FCC’s current leadership abandoned that basic truth in exchange for political expediency. And in doing so, it is ignoring a unanimous holding from the Supreme Court just last term that threatening legal sanctions and other means of coercion to suppress disfavored speech violates the First Amendment.
The commission can begin to recover some dignity only by dropping this show trial immediately.
