Yesterday, TechFreedom filed reply comments in response to the Federal Communications Commission’s (FCC) request for comment regarding the petition by Disney’s ABC asking the Commission to declare that The View qualifies to conduct bona fide news interviews so that it need not provide equal time to rivals of political candidates it interviews. As we explain, the FCC’s hazy reinterpretation of Section 315(a) violates the First Amendment, and comments filed in support of the FCC make clear just how arbitrary and dangerous the FCC’s theory is.

“It is simply not the government’s job to determine the correct balance of free expression,” said Berin Szóka, President of TechFreedom. The Supreme Court has repeatedly held that there is no valid government interest in leveling the playing field between speakers or ideas, and it reaffirmed that fundamental principle in Moody v. NetChoice. “The very definition of ‘bias’ and ‘fairness’ is subjective. That’s why the First Amendment leaves such assessments to speakers, not the government. Nowhere is that more important than in the realm of political speech.”

“Conservatives fought the Fairness Doctrine for decades, but now the FCC is creating its own bizarro Fairness Doctrine,” continued Szóka. TechFreedom’s previous comments explained the unconstitutionality of the FCC’s reinterpretation of Section 315(a) and the chill it now casts over political candidate interviews. “The Reagan FCC understood these threats and applied the equal time rule in a way that avoided meddling in constitutionally protected editorial decisions. That enabled radio and television shows of all political persuasions to thrive. Freedom for all is the only way to encourage more speech.”

“This FCC is trying to suppress political speech it doesn’t like,” Szóka warned. “That Bureau’s reinterpretation of Section 315(a) applies only to television, which arguably leans left, but not to radio, which certainly leans right, making clear how the Commission is stacking the deck. Further, the FCC’s allies want the agency to determine whether a show is too political based on factors that are entirely subjective and undefinable, outright laughable, or both.” Comments opposing ABC’s petition proposed that the FCC examine the questions asked to candidates, whether the host has engaged in “partisan” speech, and even the facial expressions of interviewers to decide whether the “bona fide news interview” exemption to the equal time rule applies. “Interrogating the content of questions is exactly the type of regulatory inquiry that the First Amendment forbids, and no serious person believes that regulation by facial expression is constitutional. As President Reagan understood, the First Amendment aims ‘to promote vigorous public debate and a diversity of viewpoints in the public forum as a whole, not in any particular medium, let alone in any particular journalistic outlet.’”

“Woe unto Republicans if a future Democratic FCC applies this new standard to radio,” concluded Szóka. “Applying the inherently unconstitutional approach suggested by some commenters would basically wipe out conservative talk radio. The likes of Ben Shapiro, Mark Levin, and Dan Bongino would be so handcuffed by equal opportunity demands that they would likely flee radio for other media. Weaponization can go in both directions, and it likely will.”

Separately, TechFreedom led reply comments joined by 50 scholars of the First Amendment, communications, and technology law, and civil society organizations dedicated to free speech.

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TechFreedom is a nonprofit, nonpartisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.

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