The Federal Communications Commission’s (“FCC” or the “Commission”) recent rejection (FCC statement here) of a petition submitted by Free Press to demand FCC action with regard to broadcasters’ coverage of governmental statements about the COVID-19 epidemic has received a great deal of coverage. What may have escaped attention, however, is that, aside from some sharp wording, the decision really was just an ordinary expression of the Commission’s longstanding aversion to interfering in broadcasters’ content decisions. Perhaps more surprising is that an organization with the name Free Press is attempting to convince a government agency, the FCC, to force broadcasters to cover the news in a particular way. Regardless of whether Free Press is on the side of the angels in promoting Truth, its petition raises First Amendment issues of supplanting broadcasters’ editorial judgment and compelled speech.

The basic thrust of Free Press’s petition is that by broadcasting the President’s press conferences and other statements about the COVID-19 pandemic without adding certain contradictory content, broadcasters are, in effect, transmitting a hoax. Free Press argues that since the information presented is false, requiring broadcasters to add clarifying comments is essential to prevent danger to the public. As an example, it points to how the President’s positive mention of a drug may have led to a man’s death after he ingested a cleaning product which contained a similarly named chemical. Further, Free Press points to other broadcasts of talk radio commentary which might lead listeners to what Free Press views as inaccurate conclusions about the pandemic. Thus, in light of the danger to the public, Free Press states that the Commission’s anti-hoax rule requires that broadcasters must air disclaimers to avoid misleading the public and to protect the public health.

The FCC rejected Free Press’s arguments, stating that the petitioner fundamentally misunderstood the Commission’s limited role in regulating broadcast journalism. With regard to the anti-hoax rule, the Commission noted that for a broadcast to constitute a violation, the broadcaster would have to know that the information it broadcast was false. Further, the FCC rejected in no uncertain terms the idea that it would or even could be a self-appointed arbiter of truth in broadcast journalism. Moreover, even assuming that Free Press’s opinion regarding the veracity of the information presented is correct, false information enjoys some First Amendment protection, and Section 326 of the Communications Act prohibits the Commission from interfering with freedom of the press or censoring broadcast communications. Further, the decision noted that most of the information in question is presented at press conferences, where critical reporters are free to ask questions to probe its accuracy.

The Commission also rejected Free Press’s argument that broadcast commentators’ expressions of their opinions about the COVID-19 response need to be balanced by broadcasts of a contrary opinion. In the FCC’s view, this argument was essentially an effort to revive the long-gone Fairness Doctrine, which was eliminated well over 30 years ago as a violation of the First Amendment.

This dispute provides yet another illustration of the old truism that difficult cases make bad law. One might normally expect a group with the name Free Press to support just what its name implies: freedom of the press. Here, however, in light of the high stakes of the current crisis, it is advocating that the press be compelled to ensure its view of the truth is always conveyed, even if only to provide “context” to the statements of government officials. Clearly, the public has a substantial interest in obtaining factual information about such an important situation. Nonetheless, it is unclear how requiring the press to question commentary or fact-check live news events advances press freedom.

In contrast, the FCC’s decision is simply one more in a long line of Commission statements recognizing that Section 326 of the Communications Act and the First Amendment to the Constitution prohibit the FCC from interfering with the programming decisions of licensees. And in fact, this principle is not partisan; Democratic Senators recently invoked it in seeking Commission intervention in a dispute about threats to broadcasters of the consequences of supposedly false political advertising. In so doing, they sought to remind the Republican-appointed FCC Chairman of his prior statements affirming the FCC’s commitment to upholding the First Amendment and avoiding interference with broadcasters’ editorial judgment, even when false news coverage was alleged.

The ultimate question here appears to be, in a time of crisis, who may decide what truth must be broadcast to serve the public interest. The FCC rightly has come down on the side of the broadcaster.