Broadcast Journalism and the First Amendment: A Conversation with the FCC’s General Counsel

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Micah Wallen:  Welcome to The Federalist Society’s Teleforum conference call. This afternoon’s topic is titled “Broadcast Journalism and the First Amendment: A Conversation with the FCC’s General Counsel.” My name is Micah Wallen, and I’m the Assistant Director of Practice Groups here at The Federalist Society.

 

As always, please note that all expressions of opinion are those of the expert on today’s call.

 

Today we are fortunate to have with us our moderator, Mr. Randolph May, who is Founder and President of the Free State Foundation. After our speakers have their opening remarks, we will then go to an audience Q&A. Thank you both for sharing with us today, and, Randy, I hand the floor over to you.

 

Randolph J. May:  Micah, thank you very much. And first of all, thanks to The Federalist Society for hosting this teleforum, which I know will be interesting, informative, and important. Second, before we go any further, I want to say that I hope all of our listeners today and their families and friends are healthy and that everyone stays well.

 

So the title of today’s program is “Broadcast Journalism and the First Amendment: A Conversation with the FCC’s General Counsel.” So I want to introduce the FCC’s general counsel, Thomas Johnson, who I know and most of you know as Tom. Tom previously, before assuming his present position, served as Deputy Solicitor General for West Virginia Attorney General Patrick Morrisey. Prior to that, he spent time at the law firm of Gibson, Dunn, & Crutcher. And he was a law clerk for Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. So a very impressive resume, of course.

 

And I will say, speaking of an impressive resume, I’ll admit upfront that I’ve been involved in communications law and policy for close to 45 years now. And I’ve served as Associate General Counsel at the FCC about four decades ago. And that’s another way of saying that I’ve seen a lot of FCC General Counsels at the Agency, most of them excellent public servants. But I have no hesitancy at all in saying that Tom Johnson is one of the very best.

 

So I’m excited to be able to moderate this for him. And by the way, Tom’s current boss, FCC Chairman Ajit Pai, served only as Deputy General Counsel, not General Counsel. So Tom, you obviously have even bigger things ahead of you in your career.

 

Okay. Well, let’s jump in. All of you have no doubt noticed that President Trump has been holding frequent press briefings to update the press and public on coronavirus developments. It is principally those briefings that lead to the petition filed at the FCC by an organization named Free Press that lead to the agency’s decision that brings us together today. By the way, as the discussion proceeds, you might consider whether you think it is at all ironic that Free Press chose that name. And you might consider as well—and I’m sure we’ll discuss this later in the program—the ramifications of the FCC’s decision beyond the immediate disposition of the Free Press petition, for example, for regulation of the media more generally and First Amendment jurisprudence.

 

The FCC does have a long history of engaging in judgments regarding program content under Congress’ delegation of authority for the Agency to regulate broadcast licensees, “in the public interest”. The public interest standard goes all the way back the provisions in the Radio Act of 1927, which were incorporated into the Communications Act of 1934. As many of you know, the theory is that, because spectrum is a scarce resource, not everyone who wants a broadcast license can have one. Therefore, in doling them out, the FCC must ensure that broadcasters operate in the public interest.

 

Just as a promotional footnote and quick digression, my 2001 Federal Communications Law Journal article, which was titled “The Public Interest Standard: Is It Too Indeterminate to Be Constitutional?”, answered that question in the affirmative. And I’m sure Tom is aware of this, but everyone may not be. There are over 100 delegations of authority to the FCC in the Communications Act, “in the public interest.”

 

Some of you listening may be old enough to remember the Fairness Doctrine, which the FCC jettisoned in the mid-1980s, in large part because of the agency determined enforcement of the Fairness Doctrine was inconsistent with the First Amendment. That agency policy required broadcasters to demonstrate that they covered issues of public importance and that they did so in a balanced way. Now, just to set up our discussion before turning the mic over to Tom, I’m going to read just the first two paragraphs from the FCC’s decision disposing of the Free Press petition. And then he can dive into a very -- much more complete explanation.

 

This is from the decision. “Free Press has filed . . . an emergency petition requesting and investigation into broadcasters that have aired the President’s statements and press conferences regarding the novel coronavirus (COVID-19) and related commentary by other on-air personalities. The petition claims that the President and various commentators have made false statements regarding COVID-19, which the Commission licensees have broadcast to the public and which allegedly have caused or will cause substantial public harm. Free Press asks the Commission under its Section 309 public interest authority and its rules prohibiting broadcast hoaxes to investigate these broadcasts and adopt emergency enforcement guidance ‘recommending that broadcasters prominently disclose when information they air is false or scientifically suspect.’”

 

“We deny Free Press’s petition. For the reasons explained below, the petition misconstrues the Commission’s rules and seeks remedies that would dangerously curtail the freedom of the press embodied in the First Amendment.”

 

So I’m going to stop there and turn it over to Tom, and he can explain what the Commission did more fully and, more importantly, why the Commission did what it did and why it’s so important in terms of the Commission’s role. So Tom, take it away.

 

Thomas M. Johnson:  Well, first of all, thank you so much, Randy, for that much too kind introduction as well as for that great setup for what we’re here to discuss today. And thank you also to The Federalist Society for hosting today’s teleforum. So as Randy said, we received this petition styled as an emergency petition under what is Rule 1.41 of our rules, essentially what’s called a petition for inquiry. And while that’s not a rule that is very frequently invoked, it’s basically a request that we take some action, that we initiate some proceeding on our docket.

 

And this particular petition asked that we start an investigation into broadcasters who did basically one of two things, if you want to consider this request in terms of two overarching categories: one, that they have aired the President’s remarks concerning the current national health crisis on COVID-19 or the President’s press conferences regarding the same. And second, the broadcasters are also permitting political commentators to express opinions about this ongoing crisis, both of which in Free Press’s argument in the petition were being done without any context, contained potentially false or misleading statements, and that broadcasters were not providing sufficient context for those statements or disclaimers of those statements.

 

So what Free Press asked us to do was to conduct an investigation into these broadcasts and to issue emergency guidance requiring broadcasters to run disclaimers in the lower third of the screen as you’re watching these press conferences that would basically say something along the lines of “What you’re watching or what you’re seeing may contain false or inaccurate statements or that might attempt to fact check statements that are being made in real time.” And the vehicle that they site in their petition for asking the FCC to take this action is our general public interest authority, as Randy mentioned, under Section 309 of the act, as well as our broadcast hoax rule.

 

Now, to give you a little bit of background, the Commission historically -- and we can talk a little later about some of that history, but the Commission historically has taken a very narrow view of its role in overseeing broadcast journalism. In fact, Section 326 of the act essentially codifies our obligation to respect the freedom of the press as embodied in the First Amendment and not to censor broadcast news. Accordingly, our rules, including the broadcast hoax rule, have been implied very narrowly so as to prevent that kind of incursion on freedom of the press.

 

So what is our broadcast hoax rule? Basically what that rule provides is that a broadcaster cannot knowingly broadcast false information related to a national catastrophe that is reasonably foreseeable to cause harm -- substantial public harm and, in fact, causes substantial public harm. And the types of circumstances -- the types of fact pattern that gave rise to that rule were narrow circumstances in which it was clear that a particular broadcaster had an intent to deceive the public. So for example, there were cases in which during the Gulf War a broadcaster said, “We are under nuclear attack,” or a case where someone on the air -- an on air personality said, “My co-host has just been shot in the head,” leading police to go onto a dangerous and time and resource consuming chase to the radio station.

 

Those are the kind of intentional deceits, what we might ordinarily think of as hoaxes, that this rule was designed to prevent. And it has been applied historically very narrowly and infrequently. So contrast the situation in which Free Press asked us to find a broadcast hoax.

 

This is an ongoing rapidly evolving national health crisis in which the American people are looking to see the reaction from their government officials at the federal, state, and local level, are looking to hear from medical professionals, including those employed by the federal government and on the White House Coronavirus Task Force, to try to understand what the federal policy is with respect to actions that are going to be taken on the health side, on the economic side, are trying to learn in real time what potential treatments might be available, what the state of research is on vaccines, and all of these highly technical, medical, and scientific and predictive issues that we’ve all seen play out over the course of the past month and more.

 

And as we talk about the public interest under Section 309, we have to be conscious of the fact that broadcasters are promoting the public interest, or performing a great public service, in terms of making this type of information available to the public. And that in itself was a significant reason why we felt that the broadcast hoax rule, narrow as it is, should not be applied in these circumstances. The other thing that motivated our decision as well was the fact that the premise -- the underlying premise that these things have been aired without context is demonstrably false.

 

I cannot think of another news cycle in recent memory in which everything that the President has said, everything in which medical professionals have said, models that have been put out, state and local authorities have said have been subjected to rigorous scrutiny by the press. And it’s not just broadcasters who are present at the President’s press conferences, which sometimes take hours of questions -- often critical questions from the news media, but it’s also cable news. It’s also online sources of information. It’s social media.

 

So when we talk a little bit later about some of the historical development of First Amendment doctrine in this area, we need to keep in mind the fact that people have a lot of varying sources of information today. And they all are laser focused on this crisis and on fact checking in real time.

 

And so to say that you’re going to, as the federal government, as a federal agency, essentially superimpose this layer of review, this cloud over broadcasters during this ongoing, evolving news story to say, “ You haven’t sufficiently disclaimed something that the President just said,” or “You haven’t sufficiently given context to some statement that was made,” especially when we’re dealing with imperfect information, when we’re dealing with a lot of predictive information, when we’re dealing with trials -- medical trials that are ongoing and have not yet yielded definitive results, that is an extremely perilous position to put the federal government in to suggest that we might take enforcement authority against broadcasters in these circumstances.

 

Consider what’s most likely to happen, right? Free Press has said in the wake of our decision that “We did not actually ask the FCC to censor broadcasters. We simply asked that they conduct an investigation, that they issue guidance, that they require disclaimers.” But the petition says that broadcasters essentially have a choice. They could stop airing these broadcasts altogether, which would obviously be a form of censorship. Or they could submit to some sort of disclaimer regime overseen by the FCC.

 

But I would say that if I were advising a broadcaster, if you have that sort of cloud of federal investigation over your head where you don’t know how that is going to be applied in any particular circumstance, that is significantly [Inaudible 16:53] and will undoubtedly either chill speech, prevent these broadcasts from being aired, or at least significantly curtail what is put on the air. So what we said was that in our system, both under the Communications Act and the First Amendment, it is the responsibility of the news and of the broadcasters to police the voracity of what our public leaders were saying, not the federal government.

 

And I want to make a related point here because, at the end of the day, what we regulate at the FCC is our communications networks. And if you look at our history of making predictive judgments about how technology and about how networks are going to evolve, we’re often wrong even about that. In the core area of our expertise, we have made, at times in the past, bad judgments about the best uses that spectrum could be placed, at times making policy decisions that, for example, delayed the advent of FM radio, delayed the advent of cellular phone technology by many years. It’s one of the reasons why Chairman Pai has taken a much more humble approach to regulation and has adopted much more flexible and technology neutral type policies.

 

So if we often get it wrong even in the core area of our expertise, imagine us trying to make judgments about the results of clinical trials for potential treatments for COVID while those things are still ongoing and where that is not within our core area of expertise. It would be an absolute nightmare to try to do that. So like I said, that was one side of the fence.

 

The other side being opinion commentary. Free Press also asked that we take action with respect to broadcasters like Rush Limbaugh and Mark Levin who have been supportive -- publicly supportive of the President and his approach to the crisis. And this to me is really a thinly veiled -- maybe not so thinly veiled attempt to resurrect the Fairness Doctrine, which, as Randy said, was a rule that for many years the FCC had in place to attempt to require some balance of presentation of issues. And the FCC said in a series of reports ultimately leading to the abolition of that doctrine that we were not going to police the airwaves in that way, that that hadn’t been a productive enterprise and that actually lead to more chilling of speech and less diversity of viewpoint on the air.

 

And it was actually in the wake of that that you started to see more conservative voices on the right get airtime on talk radio, for example. And so to take what is supposed to be a narrow rule focused on broadcast hoax, focused on the kinds of things where someone is intentionally creating a false crisis on the air, something like the old “War of the Worlds” broadcast or something like that -- to take that and to say that we are going to use that to potentially investigate or initiate enforcement action against a conservative news radio is really sort of that wolf in sheep’s clothing of the Fairness Doctrine rearing its head again.

 

So at the end of the day, what we determined in denying this petition is that the information that was getting out there and was being tested by broadcasters, by other news outlets, that this was a real public good and that we were going to trust the news media and, ultimately, the American people to make those kinds of determinations as to what information is true and which is not. And so, Randy, that’s basically sort of an overview of the petition. And I’m happy to answer any other questions you might have.

 

Randolph J. May:  All right. Well, Tom, that was a terrific overview of the decision. And let me just carry on the conversation a bit -- awhile before we ask the audience to jump in with any questions they have. But a couple things that you said hit home with me, and I’ll just maybe bring up a couple of them and you can respond. But when you were talking about the Fairness Doctrine after I had mentioned that, and you used the phrase -- I think you said “If I were advising a broadcaster about what to do, what to air or not to air or whether the program might be problematic, you would have to consider the cloud over the head of the broadcaster.” I think you said that.

 

And it rang a bell because I remember I gave away my age a bit in my introduction. So I guess I can confess that back in the ‘80s I was involved for -- with broadcasters in some of these types of content-regulation determinations. And when you talked about chilling the broadcasters’ editorial discretion, the broadcasters’ decision-making process, that was not just hypothetical, Tom. It was real.

 

And of course, the reason it was real, if we need to put a point on it, is because the FCC had bottomed, even though this doesn’t happen much. The FCC, if it found violations, then that could go to the licensee’s fitness to be -- have its license renewed, right, under the public interest standard. And these licenses were not for life. They had to be renewed. And of course, that was an ultimate threat, and it’s still relevant.

 

Another thing that I thought about today, I read in the paper—maybe many of our listeners did as well—that I think Facebook has been taking down posts. They were, I guess -- maybe particular posts were referenced. I didn’t see all the details -- but taking down certain posts that it considered to be not true or accurate and maybe in the nature of hoaxes in the way that we would describe hoaxes and that it was doing that specifically with regard to coronavirus postings.

 

And I think that highlights for all of us the difference between -- which sometimes we might lose sight of, between a private company making decisions like that and its right under the First Amendment to exercise that type of editorial discretion and the difference between the government becoming involved in those types of decisions with the backdrop of the type of sanction that I just talked about. So I think that’s relevant here as well.

 

Does that ring true to you, or am I getting far field when I bring Facebook into the discussion here, which might lead me to ask you about net neutrality in a moment which I think is also -- I’ll just go ahead and say that it always struck me -- and in fact, I argued that the FCC’s rules -- and the current FCC, of course, eliminated the Obama era rules that had been adopted in your -- Chairman Pai’s Restoring Internet Freedom Order that was adopted in December of  2017 -- but rules that basically prohibited internet service providers from blocking certain sites, even though all the IPs -- more of the IPs said that they wanted to do that anyway. It always struck me that that had First Amendment implications that were not unrelated to really the type of must-carry rules that applied to cable systems that were at issue in the Turner Broadcasting case. So I’ll throw that at you as well.

 

Thomas M. Johnson:  I think those are some good thoughts, Randy, for discussion and that I’ll just react to a couple of them. I think you’re absolutely right that particular companies and news outlets and the like are engaged in a robust debate right now as to exactly how to cover this current pandemic responsibly. It wasn’t long ago when people were being critical of the President that he wasn’t -- he didn’t hold enough news conferences, that his press secretary -- or his prior press secretary hadn’t held a news conference.

 

And now you’re starting to hear the same voices or other voices saying that now he’s holding too many news conferences and that broadcasters and cable news should not actually be covering these live beginning to end but they should be exercising more editorial judgement. And that debate is playing out. And what we’re basically saying is that there’s no need for the federal government, particularly the FCC, to get involved in that debate when you already have a lot of different outlets making different judgments that the public has the ability to access and to learn information from. You mentioned Facebook and social media are one example. But the 24/7 cable news networks and online journalism are other examples, as well.

 

And to tie this in to what you were saying about net neutrality, I think what the chairman has said about these various instances of alleged blocking of content and the debates about whether ISPs ought to be able to do it, whether the social media companies should be able to do it, the Chairman’s view has been consistently that the same rules should really apply across the internet ecosystem and, in particular that we ought to have a regime where both internet service providers and social media companies are transparent about what their practices are so the consumers can understand how they’re making those sort of editorial judgments.

 

And then you have competition agencies and consumer protection agencies at both the state and federal level that can police that conduct when it truly crosses the line into something that is unfair or deceptive or something that is anticompetitive.

 

Part of the problem, I think, with what Free Press was suggesting that we do here is that the type of regime that they were asking that we put in place, it differs substantially from sort of a garden variety disclosure requirement. If you think about a lot of government disclosure requirements—let’s say those that the SEC puts in place for financials, the type of transparency regime that we put in place when we repealed the net neutrality rules requiring service providers to disclose those instances in which they engaged in blocking of content, for example—those types of things are purely descriptive. They’re relatively easy to comply with and to provide valuable information to consumers.

 

Here, it’s not at all clear what sort of disclaimer would satisfy a rule that said that a broadcaster couldn’t air a statement of the President during a live press conference without sufficient context. This would involve both the broadcaster and the federal government getting involved in a lot of fact sensitive judgments about issues that are oftentimes unsettled, complex, scientific, technical, or where the jury is still out. For example, one of the examples placed into this Free Press petition was the efficacy of chloroquine as a treatment for COVID.

 

Well, we now have FDA approval for experimental clinical trials. Clinical trials are underway, and the jury’s still out on that and a lot of other issues surrounding potential treatments for COVID. So at what point would a disclaimer be appropriate in a context like that. At what point would the federal government determine that there ought to be enforcement action.

 

As I think the Supreme Court and other courts have said, when you have an investigation or a legal rule that is vague or ambiguous or incapable of consistent application, that’s precisely the type of thing that raises both due process problems and has a likelihood of killing speech under the First Amendment. So we declined to go down that path.

 

Randolph J. May:  Exactly. Micah, I think we could open it up now for questions if you have any. If not, I’m sure that Tom and I could probably talk for hours about this subject. But if you want to open it up for questions now, and if Tom is amenable to that, I think we could do that.

 

Micah Wallen:  Absolutely. Let’s go ahead and open up the floor for audience questions. We have a question that’s already lined up, so we’ll now go to our first caller.

 

Monty Tayloe:   Hi, Randy and Tom. This is Monty Tayloe from Communications Daily. I had two questions. Tom, was there an unusual process for the response to this petition? I noticed that you guys responded way faster than I expect the FCC to respond to anything. And I also thought—I mean, and this is just anecdotal—but as someone who follows FCC releases a lot, the tone of this response seemed different than other ones. Was there anything unusual about the process that generated your response? Was the eighth floor involved in a degree that’s unusual, or do you have any comment on that? And then I have another question once you’re done.

 

Thomas M. Johnson:  Okay. That was the first question. No, not unusual other than the fact that Free Press styled this as an emergency petition. And so there’s been some complaint after the fact that we issued our decision too soon. But we tried to answer this in a relatively quick fashion precisely because of how important we view sort of the ongoing news coverage associated with this pandemic and the fact that we wanted to be clear about what the Commission’s view in this area is.

 

And the other part that I would say doesn’t always happen is that I took a role in crafting the letter and signing the letter because a lot of what was being asked sort of cut across various different bureaus that would have responsibility for any sort of investigation of broadcasters that was being requested in this letter. So this was sort of a joint effort, as you see, signed by me and Michelle Carey, the head of the Media Bureau. But we wanted to be clear and unequivocal in terms of our defense of the First Amendment values that are codified in the Communications Act and that, as the Chairman has said publicly, that he stands in defense of the First Amendment here.

 

Randolph J. May:  Monty, maybe -- you know, we were only planning on one per person, but why don’t you go ahead and ask your other question.

 

Monty Tayloe:  Thank you so much for accommodating me, Randy. I really appreciate it. Yeah. Tom, I was wondering if you could compare this request by Free Press to multiple comments that have been made by the President since he got elected that also call for broadcasters to have their licenses pulled over reports or to have the FCC investigate them. Is this -- is there something different about what Free Press is asking for and what the President was asking for that merited this more substantive response? I realize they filed a petition and he didn’t. But any comment you could make how it compares to that.

 

Thomas M. Johnson:  Right. And I don’t want to comment on anything that didn’t actually come through the door in the same formal way that this particular petition did. But what I will say is that, I mean, the Chairman has been consistent in terms of his defense of the First Amendment in this context. So we would apply the same rules, same standards to any such request that we might receive.

 

Randolph J. May:  Monty, this is Randy. One thing, I believe the Chairman has done that, responded in one or two instances. But I remember specifically because I am a strong defender of the First Amendment. There was an occasion when I think the President did suggest that someone ought to be looking at one or another networks’ licenses. I don’t remember which one, and it doesn’t matter for something. I know I said at the time that, under those circumstances, it would be inappropriate. As far as I know, the Commission never has done that, as well.

 

I’m going to do one quick, again, historical footnote because it’s kind of interesting in this context. Back when I was at the FC -- you were talking about -- you were asking about the speed of the FCC acting. And actually, I can recall pretty vividly, especially during the 1980 election and maybe leading up to that, the Commission was often called upon—I don’t know whether it does it the same way anymore—but to issue rulings on equal time in the context of the political broadcasting rules. And those rulings were really turned around pretty quickly.

 

And there was actually a rule then, Tom, that the -- and they were signed by the mass -- what was then the Broadcast Bureau -- but someone in the General Counsel’s office had to also co-sign those. And we had a Deputy General Counsel at the time or someone in some relevant position, and there would always be a place for him to sign. But they were coming so fast and furious at some point that he would just sign them “Signed by not read.” And that seemed to be acceptable back then in that era. I know it wouldn’t pass muster with you. What about the next question?

 

Micah Wallen:  We’ll move to that caller.

 

Batia Zareh:  My name is Batia Zareh. I’m a comparative intellectual property lawyer. My question for Tom is regarding something you mentioned about the differences between free to air broadcast news sources and the cable internet providers. So I can appreciate that perhaps you want to apply a traditional First Amendment standard across all of those providers. But there are practical and historical differences between what they provide.

 

Mainly, one has traditionally been paid for by the taxpayer while the others are privately funded. And quite frankly, many Americans can’t afford much of what we consider cable news outlets. So there are lots of people who rely on really just the three free to air broadcasters as their primary news sources. Is that something that Chairman Pai continues to consider in formulating policy, or has that sort of gone away with the demise of the Fairness Doctrine?

 

Thomas M. Johnson:  Well, I think this is a good question to get a little bit more into some of the history here.

 

Batia Zareh:  Thank you.

 

Thomas M. Johnson:  Sort of the Seminole case that upheld the constitutionality of the Fairness Doctrine back in, I think, it was 1969 is a case called Red Lion v. FCC. And what the Commission said at that time was that there was a scarcity of spectrum and therefore scarcity of airwaves. At that time, of course, the big three television networks were still very much dominant in terms of their being sources of news for Americans. So that was accepted by the Supreme Court, not as something that the Commission had to do but as something that the Commission could do in order to make sure that scarce public airwaves were equally distributed among competing points of view.

 

Now, whatever you think of that as initial matter, I think that the Commission has in the ensuing decades reevaluated that conclusion that there’s a scarcity of choice for American consumers in terms of where they get their news. And that sort of changed factual predicates that sort of underlined some of the reports that Randy was talking about in the 1980s, how we evaluated the Fairness Doctrine. The FCC concluded that given the fact that there was an increasing competition in sort of the marketplace for news that they thought that the Fairness Doctrine could no longer withstand First Amendment scrutiny.

 

And then the D.C. Circuit upheld our decision to repel that doctrine, even though it only did so as a matter of our discretion without reaching that constitutional issue. I mean, we certainly appreciate that different people are differently situated in terms of their financial situations and their ability to access different parts of -- different types of content, which is one reason why this chairman has made it a huge priority to close the digital divide in this country, to use the tools at our disposal to try to ensure that every American that wants access to broadband can get access to broadband. It’s why we’ve initiated plans, for example, to institute a rural digital opportunity fund to encourage build out in parts of the country where otherwise it might not make economical sense.

 

But we are seeing increasing competition of, I think -- from not only cable but also from online sources of information. So that is a presumption that I think has been shared by partisan majorities of the Commission over the course of the past 20 years and more -- that this marketplace is changing and evolving dynamically. So I do think there is a question as to whether that same -- whether a court looking at the constitutional issue today would find that the same analysis would apply that justified more federal intrusion with free speech back in the late ‘60s.

 

Randolph J. May:  You know, in listening to Tom and thinking about the questions we’ve had so far and thinking about it in a broader sense of -- and what the Free Press petition I think implies -- and these questions recur over and over again at the FCC with regard to various media that are implicated under its jurisdiction. We’ve already mentioned, right, broadcasters, cable operators, internet service providers. We could talk about various types of wireless providers.

 

But when you have a First Amendment overlay in the way that I think about the First Amendment and the way it ought to operate, you think about whether you’re going to have more or less government control over the media and, to be more specific, more or less government intervention with regard to decisions about how the media operates, including content decisions. And I think it’s fair to say -- I don’t believe that Free Press would deny this. They have a view that they’re very comfortable with much more government control.

 

And again, you could apply that, I think, across the board to all of various types of media that I’ve mentioned. And they’re comfortable with the government making decisions about what should or should not be broadcast or carried over the internet or support. Whereas, on the other hand, I’m not comfortable in the same way. I don’t want to speak for Tom or his boss. But I’m not comfortable in the same way in large part because of my understanding of the way that I think the First Amendment should operate to maximize the space for private entities to speak freely. That’s consistent with my understanding of what the Founders had in mind with the First Amendment.

 

So they’re very different philosophical, I think, constructs here that are operating. And when you’re talking about Free Press and some of those that are on the same side -- I do think it’s ironic the name that Free Press gave itself. But in any event, it’s perfectly appropriate -- perfectly valid for them to have that view, of course. And I can respect their right to have the view. But I differ with it fundamentally. And at bottom, that has a lot to do, I think, with the way the FCC handled this particular complaint.

 

Thomas M. Johnson:  Randy, I guess I would just add that is just, you know, I think that we see this play out in the FCC’s history not just in this area but in other areas in which -- I mean, the FCC made a spectrum allocation decision, for example, that gave rights to incumbents in a particular band that now we’ll have to deal with if we determine that this particular band is better used for 5G services or for flexible services. There’s a mistake of simply, you know, taking a band of spectrum and saying it can only be used for X or Y services and then that technology doesn’t pan out.

 

And one of the things the Chairman has tried to do is to make spectrum more flexible use or even unlicensed use. When you’ve given more power to the private sector to make those sorts of decisions, we’ve gotten innovations like Wi-Fi and Bluetooth in some of those unlicensed bands. And they’ve been sort of revolutionary technologies. So it’s sort of a lesson that I think plays out in a lot of different areas in the FCC history where you sort of -- when you stray from sort of enforcing the guardrails and you get more and more prescriptive in terms of which types of technology or what we even talked about: what sources of content are you going to regulate, you introduce these distortions into the market.

 

It sort of dovetails with the prior caller’s question because the reality of it is is that we only have this sort of special statutory authority over broadcasters. So requiring disclaimers in the context of broadcasters it introduces an asymmetry into the news market where cable news providers and streaming video and things like that wouldn’t be subject to the same rules. So it also would be ineffectual in introducing the desired outcome as well as put sort of a regulatory [Inaudible 48:11] the scales in only one part of the media ecosystem. So I think there’s lots of cautionary tales in our past about not going down that sort of pro -- more pro-regulatory route.

 

Randolph J. May:  Yeah. No, exactly. There are a lot of those cautionary tales. And everything you said is true. But just to put a point again, when you talk about decisions that particularly involve or impact -- implicate content regulation, you have this First Amendment overlay that I think is very fundamental and had an awful lot to do with the way you approached the decision on the Free Press petition. Micah, do we have any other questions?

 

Micah Wallen:  We do. We have two callers who jumped in, so we’ll move to our next speaker.

 

Caller 3:  Yes, thank you for an interesting conversation. Somebody mentioned earlier the timing of the FCC’s response to the petition. And I’m just wondering if maybe what we have here are two competing soapboxes. I recall several years ago the Trump campaign made complaints about broadcasters airing commercials that were hostile to the Trump administration policies. And I know recently the Chairman and the subcommittee chairman in the House of the FCC -- sent a letter to the FCC responding to Trump’s complaints about an advertisement on one of the channels which was critical of the Trump coronavirus response.

 

And I’m wondering if really what we have here are just two soapboxes screaming at each other for political perspectives. Although, I certainly share the Commission’s response on this particular petition.

 

Thomas M. Johnson:  Well, I guess I would put this a little bit differently, which is, as I responded to Monty, I think that the petition coming in styled as an emergency petition in the wake of this crisis in which I think Americans are looking for clarity in terms of how their federal government is going to react -- that that sort of necessitated and made it a worthy exercise for us to be clear on the record as to where it is that we stood with respect to our roles, our very limited role in terms of policing broadcast journalism. But certainly I don’t have any problem in doing things like this and sort of getting the word out that that is where the FCC stands on this important issue that we’re going to prioritize and put front and center the broadcasters, and ultimately the American public, in terms of testing the veracity of their elected officials public statements.

 

Micah Wallen:  All right. We’ll now move to our next caller.

 

Caller 4:  Hi, thank you for a very enlightening discussion today. It’s certainly reassuring to hear where the FCC is coming from on these issues. I had a question maybe on a slightly different topic but related to coronavirus and broadcasters and religious institutions. I’m wondering, in light of all the restrictions that have been in place -- I know Homeland Security’s essential list of essential services includes broadcasters, at least in the traditional sense.

 

Since we now have quite a number of religious congregations that have been forced to broadcast or stream their services over the internet and other platforms without being officially recognized as essential—although they have been in some states like California—I’m wondering if the FCC is involved in the discussions of the potential expansion of the essential list as it relates to broadcasters, if there’s any awareness about a gap there where perhaps religious institutions should be brought more into the fold on that, and whether you have any suggestions as to how they could best go about petitioning the government to be more included on that list.

 

Thomas M. Johnson:  Sure. So I will say that we’ve been very closely monitoring all of the different types of organizations and different voices that have been affected on the airstream since this crisis. And certainly religious communities have been directly affected in terms of the suspensions of services in many cases. So to give you one example, we decided to grant a petition filed by NRB, which is the nation’s -- it’s a preeminent association of Christian broadcasters to give them flexibility essential -- temporary waivers from rules that require them to dedicate particular parts of the day to children’s programing, to make it easier for them to air either live or taped content, including religious services, on the airwaves.

 

And we did that actually right before the Passover and Easter celebrations that enabled these broadcasters to have more flexibility for airing those services during the day. So we’re conscious that these are issues that are out there. And as particular organizations have filed requests for temporary waivers, emergency relief, we’ve been considering those. And I can tell you that I’ve really never seen my staff or the staff of the FCC work harder than they have over the course of the past six weeks handling all of these sort of different requests that come in.

 

So certainly where we can reduce the burden that’s placed by the federal government in order to enable the American people to exercise their right to freedom of religion and to religious worship and practice, we have not hesitated to do so.

 

Micah Wallen:  All right. We’ll now move to our next caller.

 

Monty Tayloe:  Hi, this is Monty again. Sorry, Tom and Randy. Yeah. I just had a follow up, Tom. You mentioned back when you were explaining why the FCC felt that this didn’t qualify for the broadcast hoax rule -- you seemed to be making an argument about scale and the current situation being a factor there. You said because it’s a developing health pandemic with a lot of information changing all the time that was one of reasons you felt you had to respond as you did.

 

If that situation were to change -- if this pandemic became more stable in some way or if more time passed, would that have affected the FCC’s ruling here? Or I was also wondering if Free Press cited that incident of the person who consumed the aquarium cleaner thinking it was a medicine based on the President’s briefings. And I was wondering if that was a more widespread problem, if hundreds of people were dying from something like that, would the scale of the issue affect the FCC’s response at all?

 

Thomas M. Johnson:  I don’t think so, Monty, because I think, ultimately, what all of these factors are and what they go to is this notion of intent, a sort of intent to deceive us, intent to perpetrate a broadcast hoax. And I think at the end of the day and where we landed is that, if broadcasters have made a decision to cover the President, not to cover the President, cover the President in a particular way, that that is ultimately sort of a core of editorial judgement that we’re going to respect. And it’s different in kind from pieces in which the broadcaster or some on-air personality associated with the broadcaster is deliberately spreading misinformation.

 

And we talked about those particular cases in which the President, as well as other public officials—Governor Cuomo, officials from the FDA—were counting the potential benefits of an admittedly untested treatment but one that was currently being studied. What we said was that that does not amount to an intentional -- the fact that you are pointing to a potential cure that might be approved and then medically administered -- that that does not sort of give rise to liability if someone, regrettably and tragically, decides to take matters into their own hand to ingest the chemical that is in their fish cleaner. Or another example that was cited was doctors who were panicking and prescribing the drug derivatives0 or stock piling it.

 

Honestly, that’s regrettable and, in some cases, tragic behavior. But it can’t be reasonably attributed to the point of federal liability of the fact that you have public officials that are discussing the possible efficaciousness of this drug and talking about its possible approval as a treatment. So I think that that is sort of -- at the high level, we just refuse to apply these narrow rules to the context of broadcasters’ editorial judgments in covering the pandemic.

 

Randolph J. May:  Micah, I think you ought to -- if you have one more and you did say you would take one more is just do that. And I think that probably should be the last one because we’ve run over the hour, which is a tribute to Tom and the interest here. But why don’t we take that last one. And then if we can just take about 20 seconds to make a closing statement, we could end it there, I think.

 

Micah Wallen:  All right. We’ll now move to our next caller.

 

Caller 5:  No, I think that clarified -- the last question for me, Randy and Tom and all of you. So on that note, I just echo that today’s, I believe, Abraham Lincoln’s birthday. So anyway, thanks so much for the conversation.

 

Thomas M. Johnson:  Thank you.

 

Micah Wallen:  All right. Thomas, did you have any closing remarks for us today?

 

Thomas M. Johnson:  I mean, I guess while we’re on the discussion of media policy, I guess I will just kind of tell this audience, if anyone is interested—I’m sure we have lots of lawyers on the call—that the FCC filed a petition for certiorari with the Supreme Court on Friday in a long running dispute that we have had with the Third Circuit Court of Appeals in Philadelphia asking the Supreme Court to review that court’s decision vacating our media ownership rules, which is yet another way in which we have tried to facilitate the kind of competition that we were talking about in terms of giving local news outlets different options in terms of their ability to enter into possible combinations that could help to strengthen local news and contribute to the diversity of news programming that we’ve been talking about over the course of the past hour. So that is hopefully a petition that I hope grabs the Court’s attention but probably would also grab some of our readers or listeners’ attention. So you can find that on the FCC’s webpage under the Office of General Counsel.

 

Randolph J. May:  So Micah, this is Randy, again. First of all, lest I forget, thanks to you and The Federalist Society for hosting this. I think it, as I promised initially, I think it did turn out to be interesting, informative, and important. And thanks to Tom, of course, for -- because without Tom, it would have been none of those things.

 

I’m going to end out by quoting a line from the decision that Tom wrote. I want to do so without at all intimating in any way that I agree with all or even a certain percentage of President Trump’s statements at his press conferences. To me, that’s not really important here as long as they fall outside of the hoax rule, which I think they do.

 

But in the decision Tom wrote, “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 that Free Press dislikes and silence other commentators with whom Free Press disagrees.” I’m perfectly willing to accept and hope that it’s the former, just a fundamental misunderstanding of the Commission’s limited role in regulating broadcast journalism. But regardless, I think it turns out that this decision is an important statement by the Commission of its role in regulating broadcast journalism under the First Amendment. And I’m thankful for that. And again, I’m thankful to Tom for participating today.

 

Micah Wallen:  And on behalf of The Federalist Society, I’d like to thank both of our speakers for the benefit of their valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.