Below is the summary of argument in FIRE’s comment to the FCC on its opening a proceeding to investigate claims of news distortion by 60 Minutes in airing an interview with then-Vice President Kamala Harris, filed today.
This proceeding is a political stunt. Neither the Center for American Rights’ (CAR) complaint nor this Commission’s decision to reopen its inquiry accords with how the agency has understood and applied its broadcast regulations ever. To the contrary, the Commission has made clear it “is not the national arbiter of the truth,” Complaints Covering CBS Program “Hunger in America,” 20 F.C.C.2d 143, 151 (1969), and it has strictly avoided the type of review sought here because “[i]t would involve the Commission deeply and improperly in the journalistic functions of broadcasters.” Complaint Concerning the CBS Program “The Selling of the Pentagon,” 30 F.C.C.2d 150, 152 (1971). The staff’s initial dismissal of CAR’s complaint was obviously correct.
For the Commission to reopen the matter and to seek public comment turns this proceeding into an illegitimate show trial. This is an adjudicatory question, not a rulemaking, and asking members of the public to “vote” on how they feel about a news organization’s editorial policies is both pointless and constitutionally infirm. Prolonging this matter is especially unseemly when paired with FCC review of a pending merger application involving CBS’s parent corporation and the fact that President Trump is currently involved in frivolous litigation over the same 60 Minutes broadcast. In this context, this proceeding is precisely the kind of unconstitutional abuse of regulatory authority the Supreme Court unanimously condemned in NRA v. Vullo, 602 U.S. 175 (2024). However, having solicited public comments, the FCC is obligated to respond to the statutory and constitutional objections raised on this record.
The CAR complaint rests on a fundamental misunderstanding of the Commission’s limited role in regulating broadcast journalism and fails to grasp the basic elements of the news distortion policy as the FCC historically has defined and applied it. This agency has never asserted the authority to police news editing and has rightly observed that it would result in a “quagmire” even to try. Hunger in America, 20 F.C.C.2d at 150. The news distortion policy simply does not involve itself with “a judgment as to what was presented, as against what should have been presented,” Network Coverage of the Democratic Nat’l Convention, 16 F.C.C.2d 650, 657–58 (1969), yet that is CAR’s sole complaint. And even if CBS’s editorial decisions in 60 Minutes fell within the range of activities governed by the news distortion policy, the CAR complaint is utterly deficient. It does not present any “extrinsic evidence” of news distortion as the policy requires, and the full unedited transcript of the interview in question shows the network’s editing did not alter the substance of the answers given. CAR’s complaint merely reflects its own editorial preferences, which cannot justify this inquiry.
Even if the FCC’s news distortion policy somehow authorized the Commission to act as editor-in-chief, as CAR imagines, the Communications Act and the First Amendment prohibit such intrusion into journalistic decisions. The Act expressly denies to the FCC “the power of censor- ship” as well as the ability to promulgate any “regulation or condition” that interferes with freedom of speech. 47 U.S.C. § 326. The FCC accordingly has interpreted its powers narrowly so as not to conflict with the First Amendment. And whatever limited authority the Commission might have possessed in the era the news distortion policy was created has diminished over time with changes in technology. Any attempt in this proceeding to apply a more robust view of the Commission’s public interest authority to include an ability to review and dictate individual news judgments would stretch the FCC’s public interest mandate to the breaking point.
Ultimately, no FCC policy can override the First Amendment’s fundamental bar against the government compelling editors and publishers “to publish that which ‘reason tells them should not be published.’” Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 256 (1974) (citation omitted). “For better or worse, editing is what editors are for; and editing is selection and choice of material.” CBS, Inc. v. Democratic Nat’l Comm., 412 U.S. 94, 120 (1973). The news distortion policy still exists only because of the exceedingly limited role the Commission has given it over the years, and this proceeding is not a vehicle for expanding its reach.
Finally, this proceeding itself is an exercise in unconstitutional jawboning. The Commission must heed the Supreme Court’s recent reminder that the “‘threat of invoking legal sanctions and other means of coercion … to achieve the suppression’ of disfavored speech violates the First Amendment.” Vullo, 602 U.S. at 180. The purpose and timing of this inquiry are both obvious and unjustifiable. Launching a politically fraught investigation based on such a paper-thin complaint in these circumstances is alone a compelling example of regulatory abuse. But to resurrect the flimsy complaint after it was fully and properly interred by staff dismissal, and to do so in support of the President’s private litigation position, is all but a signed confession of unconstitutional jawboning. The Commission can begin to recover some dignity only by dropping the matter immediately.
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