Leading up to the presidential election, it was a spectator sport to watch media coverage trigger Donald Trump, provoking him to lash out in ways pandering to his political base. Prominent among the Trump-versus-media dustups was Bill Whitaker’s interview with Kamala Harris that aired in early October on 60 Minutes.
Trump dubbed the interview a “giant fake news scam,” claiming CBS engaged in “the Greatest Fraud in Broadcast History” because of the way Harris’s comments were edited. Trump was so incensed by the interview that he: (1) called for the Federal Communications Commission (FCC) to revoke CBS’s broadcast license, and (2) filed a lawsuit against the network, blaming it for “unlawful acts of election and voter interference through malicious, deceptive, and substantial news distortion.”
Attacking the news media may have chummed the waters for Trump’s backers, but that’s the extent of the value of his claims that the FCC can punish CBS and that he can prevail against it under a Texas statute that targets businesses engaging in deceptive trade practices when advertising and selling goods or services. Here’s why both of Trump’s efforts to punish CBS are likely meritless nonstarters that simply demonstrate his animosity toward press freedom.
First, Trump is somewhat off base with his license-revocation demand because the owners of television stations, not the networks, hold the licenses unless a station is owned and operated––a so-called O&O station––by a network. CBS does have several O&Os but most of the stations airing 60 Minutesare affiliates owned by others.
Trump is correct that the FCC controls the renewal process for over-the-air television stations’ licenses, which typically last eight years. In exchange for the privilege of receiving a license to operate on the electromagnetic spectrum, a station is statutorily obligated to serve the “public interest, convenience, and necessity.” Stations that fail to fulfill their public interest mandate can receive warnings and fines and, rarely, have their licenses revoked.
Several items forcefully push back against revoking a station’s license simply because it edited news in a manner objectionable to a citizen, including Trump. First and foremost is the First Amendment to the US Constitution. As departing FCC chairwoman Jessica Rosenworcel explained in response to Trump’s demands, “the First Amendment is a cornerstone of our democracy. The FCC does not and will not revoke licenses for broadcast stations simply because a political candidate disagrees with or dislikes content or coverage.”
Indeed, the US Supreme Court concluded in 1973 in Columbia Broadcasting System, Inc. v. Democratic National Committee that:
for better or worse, editing is what editors are for; and editing is selection and choice of material. That editors––newspaper or broadcast––can and do abuse this power is beyond doubt, but that is no reason to deny the discretion Congress provided [to broadcasters]. Calculated risks of abuse are taken to preserve higher values.
The following year, the Court deemed the press’s “exercise of editorial control and judgment,” including its “treatment of public issues and public officials––whether fair or unfair,” a “crucial process” safeguarded by the “First Amendment guarantees of a free press.” Although that case, Miami HeraldPublishing Co. v. Tornillo, dealt with a law impinging on the rights of the editors of print newspapers, the FCC applies that same logic to the judgments of broadcast news producers. The FCC explains on its website that its:
authority to take action on complaints about the accuracy or bias of news networks, stations, reporters or commentators in how they cover––or sometimes opt to not cover––events is narrow. The agency is prohibited by law from engaging in censorship or infringing on First Amendment rights of the press.
The “law” referred to immediately above is a federal statutethat denies the FCC both “the power of censorship” and the ability to adopt regulations and conditions that “shall interfere with the right of free speech by means of radio communication.” The FCC enforces a policy against “news distortion” that applies to over-the-air broadcasters such as CBS owned and affiliated stations, but that policy applies only when “it can be proven that they have deliberately distorted a factual news report.” (Emphasis in original.) Typically, this means the intentional rigging or staging of “a significant event;” it is not enough simply “to question the legitimate editorial decisions of the broadcaster.” In short, Trump didn’t like the way CBS edited the Harris interview, but the First Amendment protects CBS’s editorial judgments in doing so.
The FCC also bans broadcast hoaxes. That rule, however, is far more likely to apply to on-air practical jokes played by radio disc jockeys on April Fools’ Day than 60 Minutesinterviews preceding November elections.
The same First Amendment principles described above will likely thwart Trump’s lawsuit if he proceeds with it given his November victory.
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