Sen. Cruz Gets to the Heart of Government Meddling in Broadcast Content — the “Public Interest Standard”

U.S. Senator Ted Cruz speaking with attendees at the 2019 Teen Student Action Summit hosted by Turning Point USA at the Marriott Marquis in Washington, D.C. | PHOTO CREDIT: Gage Skidmore

Sen. Ted Cruz (R-TX) set off a political firestorm in September when he warned that a public campaign by Federal Communications Commission Chairman Brendan Carr to pressure ABC into firing late-night host Jimmy Kimmel was “dangerous as hell.” Cruz said Carr’s warning to ABC – “we can do this the easy way or the hard way” – sounded less like a regulator than a mob boss, invoking the classic mafioso line: “Nice bar you have here – shame if something happened to it.”
 
The Kimmel controversy revived a perennial concern about government power over speech: when does regulation cross the line into coercion?
 
When Carr appeared last week before the Senate Commerce Committee, however, Sen. Cruz dialed down the rhetoric and sharpened the analysis, making two interesting observations. First, the senator surveyed Democrats’ long record of abusing the First Amendment. Second, he identified the legal authority that makes such abuse possible – the New Deal-era law that created the FCC also empowered the agency to police broadcast licensees to ensure they serve the “public interest” through diversity of views and community service.
 
“I think you would agree that the FCC’s public interest standard has been weaponized against conservatives in the past,” Cruz said to Carr. The senator from Texas cited efforts by Democratic senators in 2018 to prevent the conservative Sinclair media company from making a major acquisition. He noted that in 2023, left-wing groups sought to stop a renewal of the license of a Fox-owned broadcast station over complaints about its 2020 election coverage.
 
Carr agreed that there were times in which the agency, “rather than follow FCC precedent, broke from it and did so in a weaponized way.” This paved the way for Cruz to then examine the behavior of the FCC under Carr.
 
About Kimmel, Cruz said:
 
“ABC and its affiliates would have been fully within their rights to fire him or simply to no longer air his program, that was their choice. But what government cannot do is force private entities to take actions that the government cannot take directly. Government officials threatening adverse consequences for disfavored content is an unconstitutional coercion that chills free speech …
 
“Democrat or Republican, we cannot have the government arbitrating truth or opinion … Mr. Chairman, my question is this: so long as there is a public interest standard, shouldn’t it be understood to encompass robust First Amendment protections to ensure that the FCC cannot use it to chill speech?”
Protect The 1st welcomes Sen. Cruz’s principled stand for restoring the law to its limited, constitutional aims – rather than allowing it to be used for partisan management of news and opinion. But we would go one step further. The “public interest” duty itself has outlived whatever justification it once had.
 
That standard may have made sense in an era when a handful of broadcasters controlled scarce spectrum and dominated local markets. It makes little sense today, in a media environment defined by abundance – streaming video, cable networks, podcasts, and the internet – all of which operate free from FCC content supervision.
 
Experience has now shown that the public interest standard is less a neutral safeguard than a loaded weapon – one that both parties have repeatedly been tempted to wield against disfavored speech. A rule that invites political abuse, chills expression, and places government officials in the role of speech arbiter cannot be reconciled with the First Amendment.
 
Given that history, it is truly in the public interest to retire the public interest standard.

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