Chairman Carr’s Legal Theory of Content Regulation Is More Developed, but Still Wrong

After President Trump expressed disagreement with media reports regarding damage to planes in Saudi Arabia, Federal Communications Commission Chairman Brendan Carr followed up with renewed promises to take regulatory actions against broadcasters based on the content they air.

Such messages are variations on a theme for Chairman Carr, but this iteration came with a more developed legal theory in that Carr tied his warning to license renewal, which generally happens every eight years, rather than outright revocation.

Chairman Carr is on stronger statutory ground tying potential public interest evaluations to license renewals. Contrary to popular belief, the Communications Act nowhere imposes on broadcasters an ongoing obligation to operate in the public interest. Statutory provisions often cited for that proposition have the FCC, not the broadcasters, as their object. But the renewal statute, Section 309(k) of the Communications Act of 1934, does include “the station has served the public interest” as one finding that leads to a requirement for the FCC to renew the license.

Even that provision, however, is not a complete warrant for Chairman Carr’s framework since we might still wonder whether it is constitutional. If the public interest inquiry depends, as Chairman Carr wants it to, on content-based standards, then it’s not enough to say “the statute permits this,” since a statute that permits content-based regulation must pass strict scrutiny to comply with the First Amendment. That is, the government would have the burden to show that the content-based regulation it wants to pursue serves a compelling government interest in the least restrictive way possible.

Chairman Carr’s weekend posting had a response to this constitutional challenge too: he thinks there’s a First Amendment exception for broadcast content. And, to be fair, the Supreme Court did say that, in a 1943 case called NBC v. United States, later quoted in the more infamous Red Lion v. FCC. In those cases, the Court said that because spectrum is scarce, the FCC has no choice but to look to content to decide who gets to use it.

But while that case is still technically on the books, it is also manifestly wrong. First, its economic reasoning was muddled even at the time. Sure, spectrum is scarce, but so are all resources. But for no other resource do we think that characteristic justifies government control of speech that uses it. Indeed, when faced with regulation of newspapers, the Court had no trouble seeing that, even though paper, ink, and printing presses are scarce, the First Amendment means the government just doesn’t get a say in newspapers’ content. But beyond its doctrinal failings, the scarcity rationale is even more transparently nonsensical today when avenues for news consumption have multiplied dramatically.

So, while Carr’s precedents of choice haven’t technically been overruled (yet), they are so incorrect as to be “incoherent,” in the words of Justice Clarence Thomas. Carr should leave them behind with other ignoble decisions of the World War II-era Court. There’s no need to wait for a court to order it before following the Constitution.