Chairman Carr’s Defense of Broadcast Content Regulation Draws Historical Distinctions Without Legal Differences

This weekend, Federal Communications Commission Chairman Brendan Carr responded to my criticism of the logic he invokes to support the federal Equal Opportunities statute, which requires broadcasters that air one political candidate to offer airtime to their opponents. Chairman Carr claimed content-based regulation is allowed for broadcast because the government controls and licenses the use of broadcast spectrum. But if that were true, the same logic would entail the absurd result that the First Amendment allows the government to seize newspapers and regulate their content. Chairman Carr’s response is a list of purported differences between the two media that, he claims, allow him to avoid applying the reasoning behind broadcast regulation to other media. The chairman’s substantive reply is welcome, but its logic and conclusions are lacking.

While Chairman Carr’s response accurately states many historical facts about government decisions, it does not justify the leap in legal logic from those government choices to the conclusion that normal First Amendment scrutiny doesn’t apply to regulation of broadcast content.

Let’s take a closer look.

Chairman Carr starts with the familiar incantation that “Broadcasters are using a public resource that is owned by the American people (spectrum) to distribute their programming—and doing so for free.” To begin with, the Communications Act nowhere says the American people own the right to use spectrum, but the historical point is true: The government originally allocated broadcast licenses at its own discretion, rather than using the market price system. And the chairman is right that this is a different system from that used for newspapers, which acquired their speech media (paper, ink, printing presses, etc.) by buying them in the open market.

The question is not whether those histories are different but whether the differences justify the different legal standard for content regulation of each medium. They do not, and we can tell by looking at the 1943 Supreme Court case that (incorrectly) upheld the lesser protection for broadcast speech. In that case, the Court’s ruling rested on the claim that content-based regulation of broadcast speech was technically necessary and thus must be allowed. But the chairman is aware that the Court was wrong about that: It is not necessary to regulate content to allocate usage rights and manage interference. Chairman Carr has been a leading voice for one mechanism to do just that, namely auctions.

So, when we’re comparing newspapers and broadcasters, we’re left with a different historical choice by the government, but no one has produced a valid line of reasoning from that historical fact to a legal justification for exempting content-based regulation of broadcast speech from normal First Amendment scrutiny.

Chairman Carr next moves to the issue of interference itself. He gets the definition of scarcity right: it doesn’t just mean that broadcasts are few or that they’re the only news source in town. It means there’s not enough for everyone to do all the broadcasting they want; if everyone tried, the competing broadcasts would interfere with each other. But unlike the real differences in the histories of newspapers and broadcasters, scarcity is a real commonality. The chairman claims “in the broadcast context, one person’s use of a band is incompatible with anyone else’s use of a band” and that “this is different than cable or newspaper distribution.” It’s not. One person’s use of a printing press is indeed incompatible with someone else’s use of the same one. Two newspapers trying to use the same paper and ink would indeed find their uses “interfere” with each other. Scarcity and interference potential don’t make spectrum unique; they make it the same as every other economic good for which competing uses are easily reconciled without government regulation.

It is notable that adding a broadcast station probably feels more intractable than starting a new newspaper. You could probably get all the paper, ink, and printers set up in a day or two, whereas a new broadcast station would probably start with an army of lawyers. But don’t confuse cause and effect. The commonplace feeling of newspapers is the result of their regulatory environment, not the reason for it. The market is very good at coordinating production from scarce resources in a way that makes them feel abundant. Even for spectrum, adding new radio devices in unlicensed or 5G bands would be just as intractable if those devices came with FCC regulation of what content you could transmit with them. When the government controls scarce resources, it makes them feel zero-sum and restricted. But the government’s bad regulatory decisions don’t authorize First Amendment violations.

The chairman goes on, “As a matter of physics you can have unlimited newspapers…[t]hat’s not the case with programming distributed over broadcast spectrum.” But there are physical limits to how much paper we can make with the trees on the planet at any given time. Beyond astronomical physical limits, the real-world limit for both newspapers and broadcast stations is set by the technical performance of the hardware used to produce them, not by some immutable characteristic of the medium. We can produce far more newspapers with today’s mass production of paper and ink and mechanized presses than we could in the days when movable type was the latest technology. And we can produce many more broadcasts today than we could in the 1920s. Broadcast channels are just different colors of light; if transmitters and receivers can produce and receive ever finer distinctions between these colors, the number of feasible broadcasts increases. Indeed, the FCC oversaw the transition to digital TV broadcasting. This transition took advantage of technological advances to increase the number of broadcasts even while shrinking the amount of spectrum they used.

The chairman’s next distinction is that “in the broadcast context, the government picks winners and losers among competing stakeholders that want to use those particular frequencies. Not the case with cable or newspapers.” This difference is real, but it’s an even starker example of the government’s regulatory choices. No one made the government pick winners and losers for broadcast. And everyone agrees the government couldn’t get out of the First Amendment by picking winners and losers in the newspaper industry. The next logical step after noticing this difference should be to no longer pick winners and losers in the broadcast industry rather than to claim the government’s own mistake exempts it from normal First Amendment scrutiny.

Next, Chairman Carr asserts broadcasters took the deal the government offered: the benefits of government-backed broadcast licenses in exchange for government regulation of broadcast content, such as the Equal Opportunities statute. Leaving aside whether compliance with a statute is a bargained-for exchange, the Supreme Court recently held that private speakers do not surrender their First Amendment rights when they accept an exclusive benefit secured by the government.

The underlying legal warrant for the FCC’s offer that broadcasters can’t refuse is the factual and legal mistakes of the scarcity rationale from mid-twentieth-century Supreme Court cases that no one defends on their merits. So while Chairman Carr is right, for now, that Supreme Court precedent authorizes content-based regulation such as the equal opportunities requirement, he should lead the way to correcting those mistakes and adhering to the Constitution rather than doubling down on incorrect claims about the nature of spectrum scarcity and clinging to unwarranted legal conclusions.