5 Former FCC Commissioners Urge End to CBS Probe as ‘Antithetical to the First Amendment’

These comments are submitted to emphasize the unprecedented nature of this news distortion proceeding, and to express our strong concern that the Federal Communications Commission may be seeking to censor the news media in a manner antithetical to the First Amendment. The undersigned commenters comprise a bipartisan group of former FCC Chairs and Commissioners. These individuals served under both Republican and Democratic leadership, and from that experienced perspective, express deep concern about the breadth of the content regulation authority asserted by this proceeding. The FCC has long recognized that “[t]he First Amendment, as well as Section 326 of the Communications Act, prohibits the Commission from censoring broadcast material and from interfering with freedom of expression in broadcasting.”1 The Commission has also long acknowledged the risks to free expression and a free press created by its “news distortion” policy—a policy that has never been codified as a rule. To mitigate those constitutional concerns, the Commission has construed the policy exceptionally narrowly. It has enforced the policy very rarely, and it has adopted guardrails requiring that complaints be summarily dismissed in all but the most exceptional circumstances. Those circumstances are not remotely present here. As described in the Center for American Rights’ complaint,2 this proceeding concerns two different broadcasts of the same interview with then-presidential candidate Kamala Harris, which aired on CBS’s “Face the Nation” and “60 Minutes.” Both broadcasts aired footage of the same question, and each program aired different portions of the response. The complaint sought the release of the unedited transcript, which the Commission has now secured along with the video of the interview. The transcript confirms that the editing choices at issue lie well within the editorial judgment protected by the First Amendment and that the Commission’s January 16 dismissal of the complaint was legally correct.3 Yet the Commission has reopened the complaint and taken the highly unusual step of inviting public comment, even though the proceeding is adjudicatory in nature. These developments have unjustifiably prolonged this investigation and raise questions about the actual purpose of the proceeding.  The Commission’s departures from its typical practice and precedent are especially troubling when viewed in context. This Administration has made no secret of its desire to revoke the licenses of broadcasters that cover it in ways the President considers unfavorable.4 And the Administration has also decreed that this Commission and other historically independent agencies—including but not limited to the Federal Trade Commission, the Securities and Exchange Commission, and the Federal Energy Regulatory Commission—will now operate directly under the President’s “supervision and control.”5 By reopening this complaint, the Commission is signaling to broadcasters that it intends to act at the behest of the White House by closely scrutinizing the content of news coverage and threatening the regulatory licenses of broadcasters whose news outlets produce coverage that does not pass muster in the President’s view.  We recommend that the Commission reverse course and once again dismiss the news distortion complaint as meritless. In doing so, the agency should reaffirm its foundational and long-held commitment to acting as an independent agency and not as a censor. Any other path contravenes the First Amendment and the great American free speech tradition.