Censorship

[Commentary] In this age of “new” censorship and blunt manipulation of political speech, where is the First Amendment? Americans like to think of it as the great protector of the press and of public debate. Yet it seems to have become a bit player, confined to a narrow and often irrelevant role. It is time to ask: Is the First Amendment obsolete? If so, what can be done? These questions arise because the jurisprudence of the First Amendment was written for a different set of problems in a very different world.

Federal Communications Commission Chairman Ajit Pai got a grilling from Democratic members of the House Communications Subcommittee, who were unhappy with his deregulatory thrust and his perceived failure to sufficiently parry the President's threats against TV licenses. Committee Ranking Member Frank Pallone (D-NJ) was among a host of Democrats who upbraided the chairman for what they said was a delayed, and "tepid," as Rep Anna Eshoo (D-CA) put it, response to the President's tweeted threats against TV licenses and NBC over a news story he called fake.

Chairman Pai said he had repeated "again and again and again" that the First Amendment must be and would be at the heart of the FCC's work, including journalists reporting as they see fit without government interference. He said that was why he opposed a news diversity study under his predecessor. Chairman Pai said his record is clear, but that presidential attacks on the press were not new. But it was not as clear to Democrats that the chairman was not leaving room in his past statements for actions beyond just not pulling licenses. Pressed for more clarity from Pallone, Pai committed to not affecting license transfers in other ways due to the content of newscasts, not to launch investigations based on the content of newscasts, and that the FCC would not retaliate against companies based on the content of newscasts.

Federal Communications Commission Chairman Ajit Pai said he has not talked to the White House about his response to the President's tweets about challenging broadcast licenses. President Donald Trump, unhappy with an NBC News story be branded fake and fiction, had tweeted that someone ought to challenge the licenses and they should be revoked, "if necessary."

Chairman Pai was asked repeatedly about the issue in a press conference following the FCC meeting Oct 24. Asked if the President or White House had reached out to him on the license challenge issue, Pai said no. The chairman was asked about why it took him so long to respond to the President's tweets. Chairman Pai countered that he responded the first time he was asked, which response had been to reiterate that he supports the First Amendment, that the FCC is an independent agency, and to say that the FCC can't pull a license over the content of a newscast, no matter who asked it to. Chairman Pai said that his independence as a regulator was clear and suggested that the focus on his response was politically motivated. "I understand that those who oppose my agenda would like me to be distracted by the controversy of the day," he said.

The chairman would not say whether he thought the President's threats had had a chilling effect on the First Amendment, sticking with a regulator's answer that he was going to apply the facts and the law and make the appropriate decision. The FCC can actually pull a license over content in specific circumstances, but those don't include what news stories are covered or how they are covered.

Attorney General Jeff Sessions on Oct 18 said he could not make a “blanket commitment” to not putting journalists in jail. During testimony in front of the Senate Judiciary Committee, Sen Amy Klobuchar (D-MN) asked AG Sessions if he could pledge to not place “reporters in jail for doing their jobs.” “Well, I don’t know that I can make a blanket commitment to that effect. But I will say this, we have not taken any aggressive action against the media at this point,” Sessions replied. “But we have matters that involve the most serious national security issues that put our country at risk and we will utilize the authorities that we have legally and constitutionally if we have to.” “We always try to find an alternative way, as you probably know, Sen. Klobuchar, to directly confronting media persons, but that’s not a total blanket protection,” Sessions said.

According to a new Morning Consult/Politico Poll, 46 percent of respondents said they thought the news media fabricated stories about President Donald Trump or his administration, compared with 37 percent who said they did not. A majority (51%) said the government should not have the power to revoke broadcast licenses of major news organizations, versus 28% who said yes (the rest had no opinion). But more Republicans think it should (46%) than should not (33%). The online poll was conducted Oct. 12-16 among 1,991 registered voters.

Federal Communications Commission Chairman Ajit Pai is facing increasing pressure to distance himself from President Donald Trump’s threats against NBC — a course of action that would risk provoking the president’s Twitter-fueled wrath. Democrats have refused to let the issue die in recent days, with FCC Commissioner Jessica Rosenworcel warning that “history won't be kind to silence" on Trump's threats to the First Amendment. Chairman Pai could confront public questions about the issue as soon as Oct 17 at a telecom law event in Washington, forcing him to choose between his longstanding defense of freedom of speech and the man who made him chairman. If Chairman Pai weighs in, he risks repeating the pattern of other Trump appointees whose words and actions have drawn the president's ire and imperiled their positions in the government.

“Ajit is in a really very awkward situation, but I assure you he is on our side — we being the people who generally believe in free speech,” said Berin Szóka, president of libertarian group TechFreedom, which supports Pai's FCC agenda. “I think it’s unfair to jump up and down and insist that if he doesn’t pick a fight with the president, he doesn’t really care about the First Amendment.” Szóka outlined several scenarios in which President Trump could act to retaliate if he doesn't like what the FCC chairman has to say. President Trump could demote Chairman Pai to commissioner and elevate another FCC Republican, Mike O’Rielly or Brendan Carr, to chairman, although Szóka noted that both are probably similar to Chairman Pai when it comes to their positions on the First Amendment. President Trump could also replace Commissioner O'Rielly with a "loyalist" and name that person chairman when the term is up in 2019.

For years, the United States and others saw China’s heavy-handed censorship as a sign of political vulnerability and a barrier to China’s economic development. But as countries in the West discuss potential internet restrictions and wring their hands over fake news, hacking and foreign meddling, some in China see a powerful affirmation of the country’s vision for the internet.

Few would argue that China’s internet control serves as a model for democratic societies. China squelches online dissent and imprisons many of those who practice it. It blocks foreign news and information, including the website of The New York Times, and promotes homegrown technology companies while banning global services like Facebook and Twitter. At the same time, China anticipated many of the questions now flummoxing governments from the United States to Germany to Indonesia. Where the Russians have turned the internet into a political weapon, China has used it as a shield. In fact, when it comes to technology, China has prospered. It has a booming technology culture. Its internet companies rival Facebook and Amazon in heft. To other countries, China may offer an enticing top-down model that suggests that technology can thrive even under the government’s thumb.

On Oct 13, 20 press freedom, media justice, labor and civil liberties groups submitted a letter to Federal Communications Commission Chairman Ajit Pai urging him to publicly condemn President Donald Trump's threats to challenge the broadcast licenses of news media outlets he dislikes. Signers of the letter also include former FCC Chairman Tom Wheeler and former FCC commissioners Michael J. Copps and Gloria Tristani.

"As an independent agency charged with protecting the public interest and overseeing the public airwaves, the FCC must resist any attempts to co-opt the broadcast-licensing process to suit the president’s whims,” reads the letter, which was signed by Color of Change, Committee to Protect Journalists, the Communications Workers of America, Free Press, Freedom of the Press Foundation, the National Hispanic Media Coalition, PEN America and Reporters Committee for Freedom of the Press, among others.

[Commentary] By their silence, the Republicans at the Federal Communications Commission have joined in the president’s strategy to get into the head of every television station news editor and station manager in the country. If, because the FCC failed to make clear that the government can’t bully them, even one broadcaster thinks twice about a story and its effect on their license, then the Constitution has been abridged and the FCC is complicit.

By their inaction, the Republican FCC commissioners have already violated their oath to uphold the Constitution. That sacred document is clear: The government is not to suppress ideas and opinion. There is no ambiguity in the First Amendment. The commissioners owe it to the American public and the Constitution they swore to uphold to issue an immediate and clear statement that speech is a protected right, and that it has no role in the matter of broadcast licenses. While they’re at it, they should also issue an apology to the citizens of the United States that they took over two days to get around to telling America the truth.

[Tom Wheeler is the former Chairman of the Federal Communications Commission 2013-2017].

As President Donald Trump exploits his office to chill his critics’ speech at a nearly unprecedented level, Federal Communications Commission Chairman Ajit Pai has a chance to be on the right side of history. He has a chance to stand up for the free-speech rights of people without power — in particular the rights of people of color, who are President Trump’s favorite punching bags. The question is whether he’ll seize that chance. It’s Pai’s job to protect the public interest in the realm of media, technology and communications. He has a duty, and a moral obligation, to stand up and publicly decry Trump’s behavior.