Today, TechFreedom was joined by 80+ scholars of the First Amendment, communications, and technology law, veterans of the Federal Communications Commission, and civil society organizations dedicated to free speech in a letter detailing why FCC Chairman Carr’s latest threats against broadcasters constitute unconstitutional jawboning, especially in light of the administration’s call for treason prosecutions.

“These threats are unlawful jawboning,” said Berin Szóka, President of TechFreedom. “They rest on no statutory authority and no legitimate government interest. The Communications Act explicitly prohibits the Commission from exercising any ‘power of censorship’ or interfering with the right to free speech. In Moody v. Netchoice (2024), the Supreme Court firmly rejected government attempts to ‘un-bias’ private speech, noting that ‘there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana.’”

“Vague conceptions of ‘fake news,’ ‘news distortion’ and the ‘public interest’ violate the First Amendment,” warned Szóka. “These claims are so ambiguous that they enable seriously arbitrary and discriminatory enforcement. In FCC v. Fox Television Stations (2012), the Court found the Commission’s amorphous and inconsistent policy regarding ‘indecency’ in broadcasting to be unconstitutionally vague as applied to the plaintiffs’ broadcasts. There, as here, ‘precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way’ and ‘rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech.’”

“The Commission must repeal its unconstitutional news distortion policy,” continued Szóka. “Chairman Carr’s unsupported claim that unnamed broadcasters are engaged in unspecified ‘hoaxes,’ combined with his invocation of the news distortion policy, is plainly unconstitutional: it aims to do something the Supreme Court has forbidden—correcting bias or balancing speech—while its vagueness makes good-faith compliance impossible and invites arbitrary enforcement. Last year, former Chairs, Commissioners and other veterans of the FCC of both parties—mostly Republicans—asked the Commission to renounce that policy but leave in place the broadcast hoax rule. Their petition was simply ignored.”

“The FCC should withdraw its equal opportunities rule threats,” concluded Szóka. “Specifically, the Commission should rescind the Public Notice recently issued by the Media Bureau that ‘encourages’ television broadcasters, cable operators, and programmers to consult with the Commission before interviewing political candidates—exactly what the Commission said was not necessary in 2003. The Notice is presumptively unconstitutional because it does not apply to radio broadcasters, radio shows or cable programmers. If the Bureau determines that a television programmer does not qualify for the ‘bona fide news interview’ exemption to the FCC’s equal opportunities rule, it would have to make equal airtime available to all rival candidates upon request.”

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Read this letter on our website and find it on X and Bluesky. We can be reached for comment at media@techfreedom.org. Read our related work, including:

About TechFreedom: 

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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