Donald Trump’s Threat to Yank Broadcast Television Licenses is Stupid, Counterproductive, and, Oh Yes, Unconstitutional
I was 10 years old and at home with my family in the Cleveland Park neighborhood of Washington DC, just after dinner one night when we got a call from the White House. It was President John F. Kennedy calling for my dad, Newton Minow, then then 35-year-old Chairman of the Federal Communications Commission, the federal agency that licenses the broadcast networks and regulates communications by radio, television, wire, satellite, and cable. President Kennedy wanted to complain about something he saw on the news and he wanted my dad to do something about it.
I thought of that call when I read that the Trump campaign is threatening the licenses of television stations over an ad attacking President Trump’s handling of the COVID-19 virus. What the President said and what my father did are below. But first, here is what is happening this week:
The Trump campaign has written to television stations in five states telling them to stop running an ad from a Biden-supporting PAC called Priorities USA. “Failure to remove the ad “could put your station’s license in jeopardy” before the Federal Communications Commission, the letter said. “Your station has an obligation to cease and desist from airing it immediately to comply with FCC licensing requirements.”
In the midst of all of the chaos and concern about the virus, it is still impossible to ignore how inappropriate and downright foolish this letter is.
First of all, it is stupid and counterproductive because any effort to stifle speech just draws more attention to the very details the subject is trying to suppress. There’s even a name for it, the Streisand Effect, stemming from an incident where the EGOT-awarded superstar sued to prevent a photograph of her home from being circulated on the internet. Of course that led to news reports that included the photograph, which went viral, creating exponentially more interest in the image than there would have been if she had just left it alone.
Want to see how that works? I’m writing about the ad, so I will let you see it for yourself, and let you look at what fact-checker Polifact had to say about it.
As someone once said, never pick a fight with people who buy ink by the barrel. News media is especially sensitive about and thus eager to cover any story about someone, especially a politician, trying to tell them they can’t write something. And it is impossible in the age of the internet to stop every source of information. Trying to suppress it is just pouring gasoline on a dumpster fire.
Second, it is unsavory at best and illegal at worst. Despite the use of the passive voice in the letter, it is a clear threat. It is wrong for a political campaign to threaten retribution by any government agency, especially an independent commission, where the commissioners are bipartisan and serve for set terms, not at the pleasure (or displeasure) of the President. This letter perpetuates the notion that President Trump has little understanding of the role of the Executive Branch and the restrictions of his legal authority. The FCC licenses FM radio and full power TV stations as either commercial or noncommercial educational. It does not license networks or cable and under no circumstances are licenses based on politics. The campaign and by implication the man it is advocating for appear to be completely ignorant of the basic jurisdiction of the commission it is threatening the stations with.
Third, it is unconstitutional. The First Amendment protects freedom of speech and of the press. The Supreme Court has affirmed, over and over, that the broadest protection is accorded to speech in the context of politics and elections, recognizing that the greatest possible range of information and advocacy is essential to the democratic process. As Justice Thurgood Marshall wrote, “But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” The First Amendment “ ‘has its fullest and most urgent application’ to speech uttered during a campaign for political office.” (Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 223 (1989))
Again, this just makes the campaign and the man they are trying to re-elect look ignorant of fundamental Constitutional principles or willing to defy them, which is even worse.
President Kennedy called my dad at home because he was furious about a story on the nightly news. As my father wrote in the Chicago Tribune:
Executives in the steel industry announced a price increase, which the president believed was a violation of an agreement he had negotiated to avoid a strike. He asked if I had seen NBC's newscast in which the steel companies' execs bitterly attacked the president. I had. The president bellowed: "Did you see how those guys lied about me? Outrageous! Do something about it!"
After careful reflection, I decided the best course was to do nothing.
The next morning, I called the president and reached his assistant, Kenneth “Kenny” O’Donnell. Kenny said, “I know why you are calling because I was with the president when he called you last night.”
I said I would be happy to talk to the president, or O’Donnell could give him this message: “He was lucky to have a friend at the FCC who knew not to pay attention to the president when the president was angry.”
A week went by and I heard nothing. Then, at a diplomatic reception, the president beckoned to me with his finger from across the room. He put his arm around me and whispered “Thank you!”
My dad, who helped get the first telecommunications satellite launched, create PBS, and put Presidential debates on television and still serves as vice-chair of the Commission on Presidential Debates, knew that politicians will always think the media is unfair, which is why we have the Constitutions and the laws enacted by Congress to make sure that we hear from all sides, trusting the American electorate, not elected officials, to decide what is important, what is true, and who to vote for.