FCC Cites First Amendment to Reject Demand by Leftist ‘Free Press’ Group to Censor President Trump and Talk Radio Over Coronavirus

The Federal Communications Commission on Monday rejected a petition by a far left group that calls itself the “Free Press” demanding an investigation of broadcasters carrying talk radio and airing live President Trump’s daily COVID-19 Chinese coronavirus task force briefings with the goal of censoring Trump and conservative talk radio hosts like Rush Limbaugh. The petition accused Trump of pushing a hoax by promoting the possible treatment of the coronavirus by a commonly used drug and accused Limbaugh and other talk radio hosts of downplaying threat of the virus.

President Trump speaks at coronavirus task force briefing, March 31, file screen image.

FCC Chief of Staff Matthew Berry succinctly summarized the response to the petition by the commission, “BREAKING: The FCC’s answer to an “emergency petition” asking us to investigate broadcasters airing White House Coronavirus Task Force briefings? No. We believe in the First Amendment.”

BREAKING: The FCC's answer to an "emergency petition" asking us to investigate broadcasters airing White House Coronavirus Task Force briefings? No. We believe in the First Amendment.

— Matthew Berry (@matthewberryfcc) April 6, 2020

The Federalist’s Mollie Hemingway reported last week on the Free Press petition (excerpt):

…Free Press argued that a man without COVID-19 who died after ingesting fish tank cleaner at home, outside the direction of any medical professional, was a victim of Trump’s remarks and that therefore its censorship plan should be adopted. Citing anti-Trump activists who blamed Trump for this death, Free Press called Trump’s support for the treatment “deadly disinformation.” The group also claimed that Trump had engaged in a “mischaracterization of the efficacy” of hydroxychloroquine.

In recent days, the FDA approved the use of hydroxychloroquine for COVID-19 patients. And the New York Times conceded that the drug “helped to speed the recovery” of a group of patients who were stricken by the Wuhan Coronavirus.

Free Press cofounder and longtime board member Robert W. McChesney is an avowed socialist. He has made his views clear, saying “In the end, there is no real answer but to remove brick by brick the capitalist system itself, rebuilding the entire society on socialist principles.” He also said of his work, “[w]e need to do whatever we can to limit capitalist propaganda, regulate it, minimize it, and perhaps even eliminate it.” He has also praised Venezuela’s control of the media…

Summation of the seven page petition by the Free Press filed with the FCC on March 26(click here to read the entire seven page petition that also goes after talk radio.):

The harms from broadcast stations’ failure to contextualize presidential statements and their choice to air other falsehoods is borne out by polling showing that only 49 percent of radio listeners say they are “worried” about the virus, as opposed to 72 percent of national newspaper readers and more than of 70 percent of CNN and MSNBC viewers.26

The FCC must ensure that broadcasters are proactively protecting the health and safety of Americans and use its powers to make sure that the public receives accurate information about this deadly pandemic. Other agencies, like the Federal Trade Commission, the Department of 27 Justice, and the Food and Drug Administration have issued guidance for entities within their 28 jurisdiction to protect consumers and the public. The FCC must act too.

When the president tells dangerous lies about a public health emergency, broadcasters have a choice: don’t air them, or put those lies in context with disclaimers noting that they may be untrue and are unverified. And certainly the FCC has a duty to rein in radio broadcasters that seed confusion with lies and disinformation.

For these reasons, we urge the FCC to conduct an urgent examination into the extent to which broadcasters have aired hoaxes and false or misleading information about COVID-19, and immediately issue an emergency policy statement or enforcement guidance recommending that broadcasters prominently disclose when information they air is false or scientifically suspect. We recommend that television disclosures appear in writing in the lower third and orally, and that radio broadcasters correct misinformation about COVID-19 in oral reporting after press conferences and immediately following other instances when false information airs.

In the interest of sober and factual information to keep the public informed, safe, and healthy during this crisis, we respectfully submit this petition for inquiry. This is a life or death issue, and we request the Commission’s urgent attention.

The FCC’s complete response, minus citations (Five page response at this link), is presented below for those who enjoy a thorough legal vivisection of leftist totalitarians.

Dear Counsel: Free Press has filed, under section 1.41 of the Federal Communications Commission’s rules,1 an emergency petition requesting an investigation into broadcasters that have aired the President of the United States’ 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 Commission licensees have broadcast to the public, and which allegedly have caused or will cause substantial public harm.2 Free Press asks the Commission, under its section 309 public interest authority3 and its rules prohibiting broadcast hoaxes,4 to investigate these broadcasts and adopt emergency enforcement guidance “recommending that broadcasters prominently disclose when information they air is false or scientifically suspect.”5

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.

Free Press, an organization purportedly dedicated to empowering diverse journalistic voices, demands the Commission impose significant burdens on broadcasters that are attempting to cover a rapidly evolving international pandemic in real time and punish those that, in its view, have been insufficiently critical of statements made by the President and others. 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 dislikes6 and silence other commentators with whom Free Press disagrees.

Free Press asserts that the Commission “has a duty to rein in broadcasters that seed confusion with lies and disinformation.”7 But the Commission does not—and cannot and will not—act as a selfappointed, free-roving arbiter of truth in journalism. Even assuming for the sake of argument that Free Press’s assertions regarding any lack of veracity were true, false speech enjoys some First Amendment protection,8 and section 326 of the Communications Act, reflecting First Amendment values, prohibits the Commission from interfering with freedom of the press or censoring broadcast communications.9 Accordingly, the Commission has recognized that “[b]roadcasters—not the FCC or any other government agency—are responsible for selecting the material they air” and that “our role in overseeing program content is very limited.”10

That is not to say that the Commission plays no role in regulating the use of public airwaves to disseminate information. For example, the Commission has historically regulated the broadcast of dangerous hoaxes.11 But the Commission has applied this rule narrowly in light of the substantial First Amendment concerns involved with the federal government policing the content of broadcast news.12 Specifically, the broadcast by a station of false information amounts to a violation only if: (1) the station licensee knew that the information was false; (2) it was foreseeable that broadcast of the information would cause substantial public harm; and (3) the broadcast did, in fact, directly cause substantial public harm.13

Indeed, a review of the hoaxes that spurred the adoption of the rule underscores the narrow circumstances in which the rule applies, including a radio announcer knowingly stating falsely on air that the United States was under nuclear attack two weeks after the start of the Persian Gulf War;14 a radio show host knowingly broadcasting a friend’s fake confession of a murder, leading to a costly police investigation;15 and a radio announcer knowingly announcing falsely that another radio host had been “shot in the head,” causing police officers to rush to the scene.16

Notwithstanding the narrow scope of the broadcast hoax rule, Free Press pushes the Commission to expand its construction of the rule in order to enable government-led flyspecking of broadcasters’ editorial judgments—in this case (though the novel construction urged could apply far more broadly), their decisions to air statements by the President and others regarding COVID-19—and to issue prospective enforcement guidance discouraging such coverage absent disclaimers about their accuracy.17 We decline this invitation both because the broadcast hoax rule does not support such a reading and because the relief requested raises significant First Amendment concerns.18

With respect to the rule, a broadcaster’s decision to broadcast and comment on statements made by the President, relating to one of the most severe public health crises in a century, does not amount to airing an intentional or knowing falsehood.19 On this point, we agree with Free Press—context is key. At this moment, broadcasters face the challenge of covering a rapidly-evolving, national, and international health crisis, in which new information—much of it medical or technical in nature and therefore difficult to corroborate or refute in real time—is continually revealed, vetted, and verified or dismissed. In addition, we note that the President and members of the White House Coronavirus Task Force, including public-health professionals, have held daily press conferences in which they exhaustively answer critical questions from the press. Under such circumstances, it is implausible, if not absurd, to suggest that broadcasters knowingly deceived the public by airing these press conferences or other statements by the President about COVID-19. Moreover, there is a strong argument that broadcasters are serving the public interest when they air live coverage of important news events, such as briefings by the President, the White House Coronavirus Task Force, and state governors, during this national emergency.

Tellingly, the single concrete example provided by Free Press of alleged substantial public harm from broadcasters airing the President’s remarks highlights the weakness of its argument. The President has expressed optimism that a combination of hydroxychloroquine and azithromycin, taken together, could be effective in treating patients with COVID-19. This optimism has been shared by New York Governor Andrew Cuomo, the Food and Drug Administration, and a number of medical professionals.20 But Free Press draws a connection between those widely-held sentiments and the alleged decision of a husband and wife in Arizona to ingest fish tank cleaner, which resulted in the death of the man and the hospitalization of the woman. Without the context (ironically) that a full investigation by Arizona
authorities might supply, it blames this incident on the President’s remarks and those broadcasters airing them. To say the least, even assuming the truth of this story,21 this is not the kind of foreseeable harm contemplated by our rules. While these events are tragic, the Presidential statements in question addressed the potential federal approval and administration of hydroxychloroquine and azithromycin by medical professionals. Under the circumstances, it was not reasonably foreseeable that a broadcaster’s decision to air this statement would result in viewers or listeners ingesting cleaning products as a preventative measure to protect themselves from COVID-19.

Nor does the broadcast hoax rule prohibit expressions of opinion about COVID-19, such as those made by the radio commentators cited by Free Press.22 Free Press’s suggestion that the Commission require broadcasters to balance the opinion of these commentators—all of whom appear to be generally supportive of the President’s policies—with competing voices or disclaimers amounts to an attempt to use the current crisis to resuscitate the long-dead Fairness Doctrine. We decline that invitation, leaving to broadcasters the editorial decisions about airing political commentary and trusting the American public’s ability to differentiate between medical advice and political opinion.

With respect to Free Press’s proposal that we issue enforcement guidance or a policy statement recommending that broadcasters post prominent disclaimers when the President and others address the pandemic, we believe that such proposals are inconsistent with the First Amendment. Requiring such disclosures would constitute compelled speech, and “recommending” such disclosures through enforcement guidance or a policy statement would constitute government coercion by another name.23 And unlike standardized government disclosure requirements (like annual reports required by the Securities and Exchange Commission), the context-sensitive disclaimers requested by Free Press would improperly involve the federal government in making editorial judgments about whether broadcasters had
accurately and sufficiently evaluated claims made by the President and other government officials.mMoreover, pressuring broadcasters to air such disclosures would impose significant burdens on them, burdens that could chill news coverage at a time when information is one of the only weapons the American public has to protect itself from a contagious and deadly virus.

Instead, we conclude that the antidote to the alleged harms raised by Free Press is—ironically enough—a free press. The rapid and comprehensive coverage of the present pandemic, free from burdensome disclaimers, agency investigation, or other government oversight, advances the public interest in maximizing information flow, while facilitating the vetting of statements by public officials via the ordinary journalistic process.24

In short, we will not second-guess broadcasters (much less deploy the formal investigative power of the state against them) that are serving a critical function in providing the public comprehensive coverage of the current public health crisis and the government’s response. We leave to the press its time-honored and constitutionally protected role in testing the claims made by our political leaders—as well as those made by national advocacy organizations.

The Federal Communications Commission believes that freedom of the press is “essential to a free society and a functioning democracy.”25 ACCORDINGLY, it is ordered that the Emergency Petition for Inquiry IS DENIED.

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