Let’s start with an understatement: President Donald Trump isn’t happy with the way most American journalists are doing their jobs. During a December press conference, he proclaimed “we have to straighten out the press. Our press is very corrupt, almost as corrupt as our elections.”

About six weeks earlier, Trump sued CBS, trying to straighten it out. The complaint contends the network engaged in “deceitful, deceptive manipulation of the news” when editing a 60 Minutes interview with Kamala Harris. According to Trump’s lawsuit, CBS’s “manipulative editing [was] aimed to confuse the electorate regarding Kamala’s lack of abilities, intelligence, and appeal.” Just as he did in his subsequent anti-press lawsuit targeting pollster Ann Selzer and the Des Moines Register, Trump hitches his case against CBS on a state consumer protection statute designed to punish unfair and deceptive business practices.

At bottom, however, Trump’s lawsuit against CBS pivots on a more nebulous notion––the public interest. His complaint quotes a Federal Communications Commission (FCC) statement that “rigging or slanting the news is a most heinous act against the public interest.” Indeed, all over-the-air broadcast television and radio stations are obligated by a federal statute to serve “the public interest, convenience, and necessity.” As the FCC notes, facilitating the public interest is an obligation stations take on “in exchange for obtaining a valuable license to operate a broadcast station using the public airwaves.”

Trump believes he knows best what the public interest is, and he wants to dictate what it entails. He has vowed to “bring the independent regulatory agencies, such as the FCC . . ., back under Presidential authority, as the Constitution demands.” Furthermore, Trump has called for revoking the licenses of CBS stations and those of other networks airing stories he deems objectionable.  

Trump’s nominee to chair the FCC, Brendan Carr, stated during a December interview that “we need to sort of reinvigorate the FCC’s approach” to matters like the news distortion rule. Carr added that “there is something that’s different about broadcasters . . . where you have to operate in the public interest. So right now, all I’m saying is maybe we should start a rulemaking to take a look at what that means.”

What the public interest “means” generally distills to two competing conceptions. On the one hand, the public interest is whatever the public is interested in. It’s a laissez-faire, free-enterprise approach that lets marketplace forces (audience size and demographics) determine the public interest. It is represented by the FCC’s decision to stop enforcing the Fairness Doctrine during President Ronald Reagan’s second term.

Conversely, the Fairness Doctrine embodies an understanding of the public interest under which the public interest is whatever the government feels the public needs to know. The Fairness Doctrine compelled stations to carry content that the FCC felt served the public’s interest, regardless of whether the public wanted it. Simply put, the public interest can be interpreted either as what the public wants or what the public needs, with the latter determined by the government.

This all leads to a fundamental question: Is it is wise public policy to expand the FCC’s public interest authority, perhaps via the broadcast news distortion rule, to more closely control the editorial decisions of over-the-air broadcast journalists? More provocatively put, should a government agency––one President Trump wants to put under his direct control, as noted earlier––be granted expansive authority to pull the plug (via license revocations) on stations due to their (in the government’s determination) distorted journalism?

The glaring problem, as my colleague Daniel Lyons recently wrote, is that “an FCC proceeding to punish broadcasters for their editorial decisions is likely to crash against the rocks of the First Amendment, costing the agency significant political capital for no lasting purpose.” Indeed, James Madison, the author of the First Amendment, perhaps put it best in 1800, long before broadcasting existed:

Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true, than in that of the press. It has accordingly been decided by the practice of the states, that it is better to leave a few of its noxious branches, to their luxuriant growth, than by pruning them away, to injure the vigor of those yielding the proper fruits.

It’s pro-press logic and language that the US Supreme Court approvingly quoted more than 90 years ago in Near v. Minnesota when concluding that prior restraints on the press are presumptively unconstitutional. Ultimately, Trump should remember that after he leaves office––either immediately or somewhere down the road––a Democrat surely will occupy the White House and control a three-person majority on the FCC. The same power Trump now seeks to corral broadcast journalism then will be deployed against Republican-tilting news organizations.