President Trump’s threat to pull NBC’s license doesn’t make sense for a lot of reasons — starting with the fact that NBC doesn’t have a license to begin with. But it is still alarming to news outlets, because federal regulations aren’t clear about whether federal regulators can intervene to stop “fake” news.
You might assume the First Amendment protects all reporting. But current Federal Communications Commission language leaves open the possibility of government intervention, under certain narrow conditions.
On Tuesday, the president called out “fake news” NBC News for its handling of Ronan Farrow’s reporting on sexual misconduct accusations against Harvey Weinstein.
“I have long criticized NBC and their journalistic standards-worse than even CNN,” the president wrote after attacking the network for “fumbling around making excuses for their probably highly unethical conduct” in its handling of the exposé Farrow later published in the New Yorker. “Look at their license?”
Last October, Trump also asked after disputing another NBC News report that he wanted a “tenfold” increase in the U.S.’s nuclear arsenal, “At what point is it appropriate to challenge their License?”
In another tweet last fall, Trump suggested that all network news had “become so partisan, distorted and fake that licenses must be challenged and, if appropriate, revoked. Not fair to public!”
There are a couple off problems with Trump’s challenge to network news licenses.
For one thing, national television networks do not need government licenses, Georgetown University Law School professor Angela Campbell told TheWrap. Only individual stations have FCC licenses, she said.
Also, the president isn’t in charge of the FCC.
“The president has no authority to direct the FCC to revoke a broadcast license,” former Federal Communications Commission lawyer Robert Corn-Revere told the Wrap. “The FCC is an independent regulatory agency.”
But presidents can still exert influence — especially since they appoint all five FCC chairs. And the FCC may exert influence, too. But no one can say for sure how heavy its hand might be.
The FCC states on its website that it will investigate stations accused of deliberately distorting the news, but that the burden of proof is high.
“The Commission will investigate a station for news distortion if it receives documented evidence of such rigging or slanting, such as testimony or other documentation, from individuals with direct personal knowledge that a licensee or its management engaged in the intentional falsification of the news,” the FCC writes.
The commission says it will generally not intervene in cases in which viewers believe stations have “aired inaccurate or one-sided news reports or comments, covered stories inadequately, or overly dramatized the events that they cover” because “it would be inconsistent with the First Amendment to replace the journalistic judgment of licensees with our own.”
The FCC’s policy on intentional “distortion” is a troubling one for television companies, according to Mark Schnieder, a former FCC lawyer and adjunct law professor at Georgetown University Law School.
“One would initially think that such a claim [of intention distortion of the news] would be silly or baseless, but the FCC has still on the books a policy that was expansively discussed as recently as a case in the late 1990’s that permits members of the public to pursue claims against broadcast stations for staging or intentionally distorting the news,” Schneider told TheWrap.
“If I were NBC, I would not be worried,” Campbell said. “Complaining about content would be a First Amendment violation.”
Corn-Revere also believes it is unlikely that the FCC would sanction NBC. “It is a rule that is almost never invoked. I can’t recall a successful use of it. And if it were employed to allow the federal government to police news coverage generally, it would certainly be invalidated as unconstitutional,” he said.
But communications lawyer Peter Tannenwald told TheWrap the rule may not violate the First Amendment because it “is not punishment for speaking — it is punishment for intentional misrepresention that you know is not accurate or true.”
This isn’t the first time a beleaguered president talked about yanking a television license. On the Watergate tapes, President Nixon is heard musing about going after stations owned by Post-Newsweek Stations, Inc., Corn-Revere said.
“The episode has often been cited as a cautionary tale about the limits and dangers of presidential power,” he said. “But Nixon would not have been able to pull it off, and it certainly could not be done by a guy who thinks sending a tweet is the same thing as governing.”
“The Post and its broadcast operations survived nicely,” Tannenwald added.