Fifty scholars of the First Amendment, communications, and technology law, and civil society organizations dedicated to free speech filed reply comments in the unconstitutional FCC crackdown on The View and other television talk shows disfavored by the current Administration. We explain the unconstitutionality of the FCC Media Bureau’s reinterpretation of Section 315(a), breaking down the four factors that commenters propose that the FCC examine in assessing a talk show’s news bona fides: whether the program (1) is regularly scheduled, (2) exercises adequate control, (3) has a partisan purpose, and (4) is news or entertainment. As we explain, the FCC’s hazy reinterpretation of the last two factors violates the First Amendment.

Highlights of the reply comments include:

  • “The Supreme Court “has many times held, in many contexts, that it is no job for government to decide what counts as the right balance of private expression—to ‘un-bias’ what it thinks biased…yet that is precisely what the Commission is now trying to do, “rather than to leave such judgments to speakers and their audiences,’ as the First Amendment requires. The veneer of legal process applied over the Commission’s retaliation against speech disfavored by this administration is so thin that it is nearly invisible.”
  • “If the Commission believes Section 315(a) has been misinterpreted, it should address the matter properly by proposing clear standards based on the relevant First Amendment case law, and safeguards designed to minimize intrusion on First Amendment values, such as deadlines for the FCC to act on petitions for declaratory ruling. And any such reinterpretation must be made by the Commission, not the Bureau.”
  • “The Commission must do this before applying new standards with no limits to the Commission’s discretion to divine and impute partisan motivations. In the meantime, we implore you to cease leveraging the Commission’s powers to pressure broadcasters to reshape their speech to your liking. We have no doubt that you would demand the same if the administration were of a different political persuasion.

Signatories

Civil Society Organizations

TechFreedom

Public Knowledge

The Authors Guild

The Copia Institute

Freedom of the Press Foundation

First Amendment Scholars & Experts (Affiliation for Identification Only)

Enrique Armijo
Professor of Law
Elon University School of Law

J. Israel Balderas, Esq.
Assistant Professor
Elon University

Michael Bamberger
Retired First Amendment Litigator

Clay Calvert
Professor Emeritus, University of Florida;
Nonresident Senior Fellow, American Enterprise Institute

Alan K. Chen
Thompson G. Marsh Law Alumni Professor
University of Denver Sturm College of Law

Nancy Costello
Director, First Amendment Law Clinic
Michigan State University College of Law

Eric B. Easton
Professor of Law Emeritus
University of Baltimore School of Law

Eric M. Freedman
Siggi B. Wilzig Distinguished Professor of Constitutional Rights Emeritus
Maurice A. Deane School of Law at Hofstra University

Alan Garfield
Professor of Law
Widener University Delaware Law School

Andrew Geronimo
Director, Dr. Frank Stanton First Amendment Clinic
Case Western Reserve University School of Law

Eric Goldman
Associate Dean for Research and Professor
Santa Clara University School of Law

Roy Gutterman
Professor/Director
Tully Center for Free Speech

G.S. Hans
Clinical Professor of Law
Cornell Law School

Jane E. Kirtley
Silha Professor of Media Ethics and Law Emerita
University of Minnesota

Ronald J. Krotoszynski, Jr.
John S. Stone Chair, Director of the Program in Constitutional Studies and Initiative for Civic Engagement, and Professor of Law
University of Alabama School of Law

Thomas S. Leatherbury
Director, First Amendment Clinic, and Clinical Professor of Law
Southern Methodist University Dedman School of Law

Mark A. Lemley
Professor of Law
Stanford Law School

Yvette Joy Liebesman
Professor of Law
Saint Louis University School of Law

Gregg P. Leslie
Director, First Amendment Clinic
Arizona State University Sandra Day O’Connor College of Law

Irina D. Manta
Professor of Law
Maurice A. Deane School of Law at Hofstra University

Michael W. McConnell
Professor of Law
Stanford Law School

A. Douglas Melamed
Visiting Fellow
Stanford Law School

Carlin Meyer
Professor Emerita
New York Law School

Jess Miers
Assistant Professor of Law
University of Akron School of Law

Art Neill
 Clinical Law Professor
California Western School of Law

Clare Norins
Clinical Associate Professor
University of Georgia

Jef Pearlman
Clinical Professor of Law
Executive Director, BU/MIT Student Innovations Law Clinic
Boston University School of Law

Aziz Rana
J. Donald Monan, S.J., University Professor of Law and Government, Boston College

Robert D. Richards
 Curley Professor Emeritus of First Amendment Studies
Penn State University

Evan Ringel
 Assistant Professor of Media Law
Appalachian State University

Eric Robinson
 Reid H. Montgomery Freedom of Information Chair
University of South Carolina

David A. Schulz
 Media Freedom & Information Access Clinic
Yale Law School

Seth Stern
 Chief of Advocacy
Freedom of the Press Foundation

Rebecca Tushnet
 Frank Stanton Professor of the First Amendment
Harvard Law School

Alexander “Sasha” Volokh
 Law Professor
Emory University

Jonathan Weinberg
Distinguished Professor
Wayne State University Law School

Kenneth P. White
First Amendment Litigator

Media, Journalism & Other Scholars (Affiliation for Identification Only)

Deb Aikat
Professor, Hussman School of Journalism and Media
University of North Carolina at Chapel Hill

Caitlin Carlson
Professor and Chair, Department of Communication and Media
Seattle University

Alfred J. Cotton III
Associate Professor-Educator, Director of Undergraduate Studies
University of Cincinnati

Tori Smith Ekstrand
Professor, Hussman School of Journalism and Media
University of North Carolina at Chapel Hill

Tony Palmeri
Professor of Communication Studies
University of Wisconsin–Oshkosh

Victor Pickard
C. Edwin Baker Professor of Media Policy and Political Economy
University of Pennsylvania 

Marisa Porto
Distinguished Professor, Knight Chair in Local News and Sustainability
University of North Carolina at Chapel Hill

Christopher Terry
HSJMC Associate Professor of Media Law
University of Minnesota

Erik Ugland
Associate Professor
Marquette University

Siva Vaidhyanathan
Robertson Professor of Media Studies
University of Virginia

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TechFreedom filed its own more detailed reply comments responding to commenters’ proposed arbitrary standards. Read our letter and share it on Twitter and Bluesky. We can be reached for comment at media@techfreedom.org. 

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