Act Now to Prevent Trump From Weaponizing the FCC Against Political Opponents
If reelected, Trump will be even more dangerous because previous presidents have left a bad precedent of regulatory abuses that he'll turbocharge
Dear Readers:
We are used to politicians seeking to regulate speech for ostensibly beneficial reasons like preventing hate speech or protecting children from harmful content. But very few openly suggest doing so to silence and punish critics and political opponents.
Yet in the final few weeks before the election, former President Donald Trump is publicly announcing his plans to do just that. He is vowing to turn his rhetorical attacks against his foes, both real and imagined, into actual punitive actions against them if reelected. These actions include, as we’ve covered earlier in our Fireproofing the Presidency series, using the Department of Justice to launch criminal prosecutions and using an executive order called Schedule F to purge “disloyal” employees who might resist his plans to use federal agencies to go after his enemies and reward friends.
But another weapon in Trump’s arsenal is the seemingly mundane Federal Communications Commission regulations. Historian and media studies expert Paul Matzko deftly identifies several that could be weaponized to smite Trump’s existing critics and silence prospective ones.
In this latest installment of our series, Matzko lays out not just the ominous plans spelled out by Trump and his key allies and advisers, but also some crucial historical precedents of similar abuses by past presidents—and, most importantly, reforms that could help shield the FCC from politicization and other abuses.
It’s a must-read piece not just to understand what we are up against, but what to do about it.
Sarah Rumpf
Series Editor
After the Sept. 10 presidential debate between Vice President Kamala Harris and former President Donald Trump, Trump’s supporters blamed their candidate’s lackluster performance on the moderators and host ABC News. It was, variously, a “public show trial,” “organized crime,” or simply the “worst moderated presidential debate” of all time. Trump declared it was a “rigged” debate for which the network should have its license revoked. “To be honest,” Trump reflected the morning after on Fox News, “they’re a news organization. They have to be licensed to do it. They ought to take away their license for the way they did that.”
This is not an atypical reaction for the former president. Trump has a lengthy history of calling for broadcasters to have their licenses revoked after they criticize his conduct or policies. For example, in 2017 he wanted NBC to have its broadcast licenses revoked by the Federal Communications Commission (FCC) because of that network’s coverage of his call to exponentially increase the size of the U.S. nuclear arsenal.
Many legal scholars have pointed out that broadcast licenses do not work that way—they’re tied to individual stations, not networks—and Trump does not have the authority to order the FCC to target his critics. Nonetheless, these episodes reveal Trump’s censorial intent even if they simultaneously expose how poorly he understands the mechanisms of governance. Trump has repeatedly signaled his willingness to silence his critics via overt censorship, although, thus far, career civil servants (or, as Trump would call them, the “Deep State”) have prevented talk of censorship from turning into acts of censorship.
Trump: Following JFK’s Blueprint for Abuse
But it is worth considering how a future administration that combines Trump’s lack of principle with a modicum of administrative ability could deploy the federal government’s broadcast regulatory apparatus to extract partisan benefit. It has, after all, been done before, as I have detailed at some length in my book on the John F. Kennedy administration’s abuse of FCC regulations for a censorship campaign targeting right-wing broadcasters in the 1960s. There is a discernible pattern that resurfaces throughout the long history of regulatory weaponization by the FCC that begins with stacking the deck.
The FCC’s five commissioners are presidential appointees split along the red-blue partisan line with the chairman as tiebreaker. Nominal independence notwithstanding, the smart, aspiring commissioner will pay attention to what their presidential benefactor desires. As President Kennedy told E. William Henry when appointing him as FCC Chairman in 1963, “It is important that [broadcast] stations be kept fair,” by which he meant kept fair to me. Henry followed through by singling out right-wing broadcasters that were critical of the administration for regulatory scrutiny while leaving pro-administration broadcasters untouched.
It is not hard to imagine Trump or another authoritarian tweeting or posting a similar sentiment, thus placing pressure on their appointees to direct policy accordingly. After all, Trump has had considerable success with his appointees in other arenas, including the judiciary. Those investments are already paying off in the form of questionable rulings and trial delays. And while steering the ship of the federal judiciary—composed of 870 judgeships—requires immense effort, a relatively small investment of political capital in the FCC could go much further.
All it takes is three sympathetic commissioners to enact or enforce regulations, including some that can and have been abused for partisan purposes in the past.
Project 2025’s Radical Plans for the FCC
Trump enjoys a head start. One of the current Republican commissioners, Brendan Carr, is a Trump appointee, and would be a frontrunner for replacing the current Democrat-appointed chairwoman if Trump wins in 2024. Carr authored a chapter in the controversial Project 2025, a policy wish list crafted by over 100 right-wing organizations, and it provides some indication of the direction of a Carr-fronted FCC under a Trump White House 2.0. In this chapter, Carr signals his willingness to radically reform the FCC to make it a more effective instrument for the Trump administration’s broader goals.
For instance, Carr claims that the FCC—and not the courts—ought to have ultimate interpretive authority over Section 230 of the Communications Act, which is the law that holds online platforms such as Facebook and Substack immune from civil liability for user-posted content. Carr cites a solo, outlier opinion of Supreme Court Justice Clarence Thomas to advocate for peeling back Section 230 protections in order to “prohibit discrimination against core political viewpoints.” This echoes a frequent complaint of conservative activists, who are upset when platforms remove their posts while citing terms of service prohibiting racism, misogyny, or other hateful content. But conditioning Section 230 protection on carrying “core political viewpoints” would act as a functional backdoor to a common carrier rule without designating the platforms as common carriers. Platforms must carry this political speech regardless of whether they or their users want it.
Take note of Carr’s use of the word “core;” it raises the obvious question as to who would decide which viewpoints are core and which are not? In a political environment when Republicans routinely accuse Democrats of being communists, and Democrats are equally fond of calling Republicans fascists, the power to decide what counts as a protected versus an unprotected viewpoint is an open invitation to partisan weaponization. A sympathetic judge or FCC chairperson—depending on the enforcement mechanism—could promote favored speech by exposing platforms to massive civil liability risk if they remove or downrank that particular content, while refusing to impose that same liability to protect disfavored speech. Thus, “core” viewpoint neutrality would give a handful of presidential nominees the power to force feed their own viewpoints down the gullets of social media users.
It’s Been Done Before by Both Sides
This is reminiscent of the way the Kennedy, Johnson, and Nixon administrations in the 1960s weaponized the Fairness Doctrine. A supposedly neutral FCC regulation meant to promote reasonable disagreement on politics and policy, the Fairness Doctrine was easily abused because the FCC had the power to decide which broadcast speech was fair and which was unfair. As it turned out, unfair speech was invariably whatever speech criticized the administration. Today, advocates of enforcing viewpoint neutrality on digital platforms would replace “fairness” with “neutrality,” once again imposing speech on users in defiance of consumer preferences or First Amendment considerations.
While on the topic of the Fairness Doctrine, both conservatives and progressives over the last four decades have called to resurrect that ill-fated attempt to promote balance on the airwaves and even apply it to the internet. It is unlikely that will ever happen given that the Fairness Doctrine was legally justified by the natural scarcity of broadcast spectrum, something that simply does not apply to a functionally infinite internet. But there is another obscure FCC regulation that is technically still on the books (even if it has barely been enforced in half a century) and which could be weaponized by a sufficiently motivated set of commissioners: the news distortion standard.
Distorting the News to Prevent the Distortion of News!
The news distortion standard dates back to 1969. The FCC had launched several investigations into congressional complaints about news reporting. To be in violation, the offending news coverage needed to be more than merely incorrect or false; it had to be actively falsified or staged. Yet the initial handful of FCC investigations found no evidence of distortion behind, for example, allegations that news reporters had staged marijuana parties on college campuses.
A little moral panic over college reefer madness was one thing, but the focus of the bulk of complaints filed by multiple Democratic congressmen related to news coverage of the protests outside of the 1968 Democratic National Convention. It had been an embarrassing spectacle, story after story filed for publication about young, anti-war protestors battling with cops outside a venue where out-of-touch Democratic delegates ignored the popular will and nominated the pro-war Vice President Hubert Humphrey.
The news distortion complaints were a way of insinuating that this anger was performative and that the protests had been faked by unscrupulous newsmen. For instance, one Democratic senator accused a CBS camera crew of dressing up a “girl hippie” with a bloody bandage and coaching her to shout plaintively at the police, “Don’t hit me!” To use modern terminology, it was more politically useful to blame “crisis actors” for the clash rather than to admit that the Democratic coalition was fracturing. In the end, the FCC found no evidence proving any intentional distortion in the coverage of the DNC.
In other words, the news distortion standard—while notionally meant to promote truthfulness in the news—was itself an attempt to distort the news. The goal was to abuse the power of an executive agency by weaponizing an ostensibly neutral regulation in order to delegitimize democratic dissent. Note that such a tactic can succeed even in failure. An allegation of news distortion, regardless of whether it was sustained by the FCC after months of investigation and hearings, would create pressure on news networks to shape any future coverage—especially coverage of politicians filing those complaints—to be more favorable at the margins.
Perhaps this scenario sounds fantastical or of merely historical interest. Yet similar tactics are being deployed right now, just on the state level. The states may be laboratories of democracy, but they can also be laboratories of autocracy. In Florida, the state health department has threatened TV stations with lawsuits if they air an advertisement supporting an abortion referendum. Governor Ron DeSantis’ administration is likely to lose any such lawsuit in court, but the expense and reputational risk of even a failed legal challenge could still chill speech that runs contrary to DeSantis’ policy goals. If a state agency is willing to use an obscure, 19th-century sanitation law meant for the regulation of cesspools in order to stop critics from using the airwaves, why should we not expect any partisan federal agency to attempt to do something similar via its own obscure regulations?
Playing With Fire Could Burn Never Trumpers
The news distortion rule remains on the FCC’s books, even if it hasn’t been enforced with much consistency since the 1960s. Ironically, it was invoked recently by a group of Never Trump conservatives challenging broadcast licenses for Fox affiliate stations in order to punish Fox News for promoting misinformation during the 2020 election. That complaint to the FCC is unlikely to go anywhere, but remember that when snatching up a regulatory knife, one is as likely to end up grabbing the blade as the hilt. It would be ironic if Never Trump activists weaponized arcane regulatory statutes only to find them later used to advance Trump’s agenda.
It could be done with a single, unscrupulous commissioner. Bear in mind that, as Carr notes in his Project 2025 essay, the FCC chairperson is “empowered with significant authority that is not shared with other Commissioners,” and has the unitary prerogative to set the FCC’s agenda, schedule votes, announce hearings, and launch investigations.
Here is the worst-case scenario if Trump is elected, given that he has not been coy about his plans to persecute his critics and political opponents: On day one in office, the new FCC chairperson, citing the news distortion standard, would begin rolling investigations into any broadcast outlet that aired critical coverage of the administration. There is “fake news” or disinformation that must be rooted out! (The fact that disinformation is indeed a real problem provides even better rhetorical cover for what, in this scenario, is fundamentally an attempt to suppress dissent.) It would not really matter whether the investigations uncovered any actual impropriety; the financial and reputational cost of lawyering up and being dragged into FCC hearings would pressure news outlets to think twice before airing critical commentary about the administration.
Furthermore, given the current willingness of Elon Musk to openly boost the Trump campaign on the platform formerly known as Twitter, it is not hard to imagine that some conservative news outlets and pro-administration platforms would provide sympathetic coverage of the FCC’s investigations into their mainstream media competitors.
News providers could find themselves squeezed from multiple angles: their broadcast news team under public scrutiny for news distortion, their CEOs subpoenaed for a series of FCC hearings, their local station affiliates facing license renewal challenges, and their websites exposed to civil lawsuits after having Section 230 protections revoked for their content moderation policies. Again, even if the news provider were ultimately cleared, this kind of regulatory full-court press could have a significant chilling effect. And it could all be done, legally, under existing statutes and designated authority. We know this because similar actions have been taken by the FCC in the past, like the aforementioned Kennedy administration’s censorship campaign, the targeting of the news distortion standard, and much more.
It is reasonable to be concerned about the potential direction of the FCC under the leadership of Carr given what he wrote for Project 2025, and that he wrote it despite the risk that doing so represents a violation of federal law against electioneering by officials. But the danger is much greater than any one FCC commissioner.
FCC Is Not the Only Vehicle for Punishing Political Enemies
In fact, stacking the FCC with partisan activists might not even be necessary for an authoritarian president trying to manipulate the airwaves. As former FCC Chairman Tom Wheeler has noted, the Communications Act of 1934 includes a provision allowing the president to “cause the closing of any station” for radio or wire communications—which encompasses the full scope of broadcasting, wireless, and internet—in the interest of national security or in the case of a national emergency.
Note, presidents have been declaring national emergencies on increasingly thin grounds to advance their policy agendas, as when Donald Trump did so to justify redirecting money to building a border wall with Mexico and when Joe Biden tried to forgive student loan debts during the covid pandemic. The U.S. Supreme Court allowed the former and blocked the latter, but even in failure there is the opportunity for political advantage.
Imagine a future scenario where a president, who is angry about negative media coverage, declares a national emergency, citing a major weather event, foreign policy consideration, or whatever pretext they desire. Or they could simply claim a national security interest. They could then order the FCC to close any radio and television stations affiliated with the offending network. They might be able to justify locking down the internet exchange points that control web traffic.
Now, even if that order were not sustained in court, the potential disruption to the targeted news outlet or social media network could still be immense and costly. A clever authoritarian knows how to snatch political victory from the jaws of judicial defeat. The mere possibility of future executive action could have a chilling effect on anti-administration speech.
Act Now to Make the FCC More Independent
Until Congress acts, the FCC will remain a ticking time bomb. Its organizational structure is too amenable to manipulation for partisan advantage; and its regulations are filled with obscure, weaponizable provisions. Congress should take immediate action to reorganize the FCC into a more independent agency.
As stipulated in the Communications Act of 1934, there are five FCC commissioners who each serve five-year terms. That gives a two-term president significant power to reshape the agency, potentially turning over the entire commission. By contrast, the Federal Reserve—which is the gold standard of independence among federal agencies—has a larger board of governors: seven members, each of whom is appointed to a term of 14 years. Although presidents do still attempt to lean on the Federal Reserve, the agency is more insulated from transitory partisan manipulation than the FCC is because of the way the agency is structured.
The current organization of the FCC greases the wheels for sudden policy shifts. (Something all too familiar to observers of the FCC’s recurrent whiplash over net neutrality.) If Congress were to amend the Communications Act of 1934 to add more FCC commissioners who serve for longer terms, it would increase continuity between administrations, favor non-partisan decision-making, and smooth out abrupt changes in policy.
Finally, the elevation of the FCC chairperson does not go through the Senate confirmation process. The Communications Act stipulates that the Senate provide “advice and consent” on the appointment of only the five commissioners, but the choice of which commissioner is named chairperson is left entirely to the president’s discretion. Given the chairperson’s significant agenda-setting power, bypassing Senate “advice and consent” allows an incoming president to immediately change the direction of the FCC.
Again, this is different from other independent agencies. The Federal Reserve Chairman is appointed by the president but requires Senate confirmation. Also, their term is non-contiguous with the occupant of the White House; chairmen often overlap with subsequent administrations. This is a common source of frustration for presidents trying to bend Fed policy to their will. Thus, establishing formal Senate confirmation power over the FCC chair and making its term non-contiguous with the presidency would further insulate the agency from executive tampering, help weed out hyper-partisan bad actors, and encourage policy stability.
© The UnPopulist, 2024
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In 2021 Democrats made a big mistake in not tyrant-proofing the Presidency.
There's no chance Congress will take these actions with their current majority in the House of Representatives. They should be pursued in the event Kamala wins. God help us if the Don wins.