Sen. Kennedy to the FCC: “You’re Getting into the Foothills of Violating the First Amendment”

US Senator John Kennedy

​Federal Communications Commission Chairman Brendan Carr insists that his agency is not targeting the speech of President Trump’s critics. But Chairman Carr’s answers in a wide-ranging Politico interview do little to dispel that concern.

Politico’s White House Bureau Chief Dasha Burns pressed Carr on whether President Trump should be able to direct the FCC to investigate a broadcaster. The FCC chairman avoided the constitutional heart of the question. “Every decision we make is going to be based on the fact and the record and the law,” he replied.

That exchange set the tenor of the interview. Burns asked Carr pointed questions, and Carr retreated behind recitations of law and regulation. We wish the FCC chairman had stated unequivocally that no regulator may use the FCC’s powers to punish broadcasters for unfavorable coverage, political satire, or opinions the regulator dislikes. Instead, Carr portrayed the controversy as part of a needed “course correction” by legacy media. He pointed to broadcasters’ obligation to serve the “public interest” and the need for “trusted news outlets” – as if those standards were properly defined by the government.

After all, who decides what constitutes the proper course correction? Or what “trusted” means? Is it Chairman Carr? President Trump? And how will Republicans like it when these emerging powers are exercised against them by the next Democratic president?

The danger of government regulation of speech was illustrated last week by Sen. John Kennedy (R-LA), who grilled FCC General Counsel Adam Candeub during a Senate hearing.
“Explain to me like you’re talking to a 10th grader,” Kennedy said. “What business is it of the FCC if a television network criticizes a political figure?”

Candeub initially declined to answer. Kennedy persisted: “I mean, this stuff scares me ... I don’t like some of the stuff that is said on television, but what business is it of the FCC? Educate me.”

Candeub invoked the FCC’s statutory authority to regulate broadcasters in the “public interest.”
“And who decides what the public interest is?” Kennedy asked.

“It is the judgment of the FCC following precedent and following the law,” Candeub replied.

Kennedy warned Candeub: “Y’all be careful. You are getting into the foothills of violating the First Amendment.”

The warning is especially apt given the FCC’s actions under Carr. The agency has scrutinized ABC station licenses years ahead of their normal renewal schedule. It has also questioned whether The View qualifies for the statutory exemption from equal-time requirements for bona fide news interviews.

Carr says the FCC has not prejudged the outcomes. But an investigation can itself become punishment when the regulator controls licenses essential to a broadcaster’s business. Prolonged scrutiny encourages editors and executives to soften coverage to avoid provoking Washington.

Conservatives have every reason to resent media bias and feel iced out of the mainstream media. Look at the lineup of Stephen Colbert, Jimmy Fallon and Jimmy Kimmel – it can sometimes feel like a hate group aimed at Republicans. But the remedy for one-sided speech is more speech – as Greg Gutfeld demonstrates nightly on Fox by attracting a million more viewers than any of his late-night competitors.
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The FCC may enforce neutral laws, neutrally. It should quit hiking in the foothills of violating the First Amendment.

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