Will Loper Bright Curb the FTC and FCC Speech Police?

​Two years ago, the U.S. Supreme Court handed down one of the most consequential administrative-law decisions in decades: Loper Bright Enterprises v. Raimondo. The Court dismantled the Chevron doctrine, under which federal agencies could stretch vague statutes into blank checks for regulatory power. The message from the Court was unmistakable: agencies are not mini-legislatures, and courts must independently determine the limits of agency authority.

This was widely seen as a blow against government bureaucrats expanding their power to enact progressive policies. It is far from clear, however, whether courts will now rely on Loper Bright to rein in the expansion of agency power by so-called conservatives.

As Ed Whelan reports in National Review, judges on the D.C. Circuit are now probing whether the Federal Communications Commission is attempting to evade meaningful judicial review. This case centers on whether the FCC under Loper Bright can manipulate procedural timing and administrative maneuvering to shield its actions on a merger from court scrutiny. Similar – but far more urgent – questions should be tested on another, more fundamental issue:

When will the courts finally rein in the FCC and FTC for abusing the First Amendment? And will Loper Bright help them do it?

These questions arise because these agencies are increasingly acting as though “public interest” regulation includes the power to intimidate, pressure, and discipline disfavored speech.

Consider the FCC’s escalating flirtation with speech regulation. FCC Chairman Brendan Carr’s threats over ABC’s broadcast licenses have been invoked to try to force late-night host Jimmy Kimmel off the air. Sen. Ted Cruz aptly compared Carr’s rhetoric to a mob threat from Goodfellas: “Nice bar you have here. It’d be a shame if something happened to it.” 

The FCC has no lawful authority to police “bias,” ideological tone, or political content. The First Amendment does not empower bureaucrats to decide whether broadcasters are too liberal, too conservative, too vulgar, too partisan, or too offensive. Indeed, the whole point of the First Amendment is to deny government officials that authority.

And yet the FCC increasingly behaves as though broadcast licenses are contingent on political obedience.

The FTC under Chairman Andrew Ferguson has been moving in a similarly dangerous direction. As we previously reported, the FTC is attempting to weaponize consumer-protection laws against news organizations and media-rating firms whose viewpoints or editorial decisions offend those in power. The FTC’s theory appears to be that editorial judgments can somehow become “deceptive practices” subject to federal oversight.

That is exactly the kind of expansion of agency authority – with no statutory justification – that Loper Bright sought to restrict.

The danger of speech regulation transcends party. Republicans may enjoy seeing pressure applied to progressive media figures today. Democrats may applaud investigations into conservative outlets tomorrow. But once government acquires the habit of regulating speech indirectly through licensing threats, merger leverage, investigations, or administrative harassment, everyone’s freedoms become contingent on who currently controls the bureaucracy.

Fortunately, courts can use the standards of Loper Bright to stop the creation of a permanent administrative state increasingly detached from constitutional limits. This precedent can end the use of the phrase “public interest” as a magical incantation that authorizes speech control.

The FCC was not created to supervise political dialogue. The FTC was not established to referee journalism. Neither agency possesses constitutional authority to pressure Americans into acceptable speech. Nor should courts permit agencies to evade review through procedural gamesmanship, as the D.C. Circuit now appears increasingly skeptical of permitting. 
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The judiciary has begun reclaiming its role in policing administrative overreach. But reclaiming that role means more than narrowing Chevron deference. It requires judges willing to tell Brendan Carr and Andrew Ferguson that the First Amendment means what it says.

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