Federal Communications Commission Chairman Brendan Carr has recently employed tactics reminiscent of a "new fairness doctrine," drawing criticism for threatening broadcasters' licenses over content deemed "hoaxes and news distortions." This approach starkly contrasts with the Reagan administration's stance on broadcast regulation. President Reagan vetoed the Fairness in Broadcasting Act of 1987, arguing that the First Amendment promotes vigorous public debate and a diversity of viewpoints across the entire public forum, not within specific outlets.
Carr has invoked the FCC's "public interest" obligations, a basis for the original fairness doctrine that discouraged controversial programming due to its vague standards and the risk of legal liability. Critics argue this creates a "de facto tool for censorship." The Supreme Court's stance in Moody v. NetChoice also suggests a rejection of government attempts to regulate the "fairness" of media, emphasizing that the government cannot decide the "right balance of private expression."
Furthermore, Carr has reportedly "encouraged" broadcasters to seek prior approval for political interviews, a departure from previous FCC guidance that deferred to broadcasters' news judgments. This new instruction, applying inconsistently to television but not radio, is seen by some as partisan and potentially unconstitutional. The FCC's actions have largely evaded judicial review due to a lack of "final agency action," relying instead on threats and "soft law."
Broadcasters face a difficult choice, with the "risk of losing a license" acting as a significant deterrent. Critics argue that Carr's approach, characterized by "jawboning" and "regulation through raised eyebrow," undermines free speech principles. Former FCC officials and organizations have called for an end to vague policies that enable "arbitrary, discriminatory enforcement."
Despite Carr's assertion that he "doesn’t want to be the speech police," critics contend his actions demonstrate a partisan agenda. They urge a return to Reagan-era principles of broadcast freedom and a focus on clear rules rather than subjective interpretation, emphasizing that true conservatism supports free-market approaches to speech unregulated by government.