Broadcasters and Free Speech Groups Blast News Distortion Proceeding

The proceeding had drawn more than 8,500 comments as of Monday afternoon, many of them form letters from members of the public. The FCC “should not be used as an attack dog to silence media outlets, censor free speech and go after political opposition,” said Dina Yousef in a comment, one of hundreds of nearly identical filings. Darrel Edmondson of Searsport, Maine, commented, “Please take any and all actions necessary to investigate WCBS, and to assess revocation of their license and criminal charges, if the investigation supports such actions.”

NAB, CBS and others argued against the legality of the Center for American Rights' complaint under the FCC’s news distortion policy, while CAR and other conservative groups argued that transcripts of the CBS interview of former Vice President Kamala Harris show that distortion occurred.

CAR’s complaint is procedurally deficient, and the FCC “should make quick work” of dismissing it, NAB said. Public interest and free speech groups went further, accusing the FCC of targeting President Donald Trump’s enemies and aiding his personal lawsuit against CBS. “The timing and nature of these actions suggest that the technical machinery of media regulation might be transforming into something more problematic: a powerful lever that administrations can pull to intimidate media organizations they view as unfavorable,” said Public Knowledge's filing.

Nearly every comment from groups that frequently file with the FCC argued that the CAR complaint didn’t meet the commission's standards for a news distortion complaint and should be dismissed on procedural grounds. CAR doesn’t present any evidence that news distortion occurred, other than the content itself, while the FCC’s policy explicitly requires additional evidence, numerous commenters said. “The complaint fails to plead the elements of the Commission’s infrequently enforced and constitutionally fragile news distortion policy,” CBS said. “The danger of not requiring complainants to meet their burden before proceeding with a complaint is manifest,” said the Reporters Committee for the Freedom of the Press. The complaint also doesn’t show any evidence that the CBS-owned station it targets, WCBS New York, participated in any distortion, Free Press said. The only relief CAR requested in the complaint was the release of the interview transcript, Free Press and others noted. Since that has happened, the complaint is moot, Free Press said.

"It’s too little, too late from the network, to release the transcript under Commission compunction and after the election is over,” CAR said in its own comment filing. Because CBS was the target of past FCC news distortion complaints, and 60 Minutes has previously been accused of false reports, the FCC was justified in opening an investigation, CAR said. “There was sufficient smoke (and public discontent) to justify an investigation,” it said. “The burden is not and should not be so high that the complaint must ‘prove fire’ from the get-go.”

It's unusual for the FCC to seek public comment on a complaint, and doing so for one so procedurally deficient shows that the proceeding is a show trial, said the Foundation for Individual Rights and Expression’s Robert Corn-Revere, formerly chief counsel to FCC Chairman James Quello. “This proceeding is a political stunt,” FIRE said. The CAR complaint and the FCC’s resurrection of the formerly dismissed complaint don’t accord “with how the agency has understood and applied its broadcast regulations ever,” it said. “The Commission can begin to recover some dignity only by dropping the matter immediately.”

Several filings connected the CBS complaint to the FCC’s investigations of NPR, CBS and Comcast, as well as the president’s lawsuit against CBS. “The timing and context of this proceeding -- coinciding with President Trump's ongoing litigation against CBS for billions -- raises concerns about potential weaponization of Commission processes for political ends,” Public Knowledge said. “The clear intent of this proceeding against CBS and the others reopened by the FCC is to eliminate viewpoints disfavorable to the current Administration,” said the Center for Democracy & Technology.

“To resurrect the flimsy complaint after it was fully and properly interred by staff dismissal, and to do so in support of the President’s private litigation position, is all but a signed confession of unconstitutional jawboning,” FIRE said. “This inquiry is a source of embarrassment for all concerned, and the Commission should terminate it forthwith.” The U.S. Supreme Court ruled in NRA v. Vullo that federal agencies can’t directly or indirectly use their authority to censor or restrict speech, FIRE said.

Transcript Disagreement

Although CBS, NAB and other groups said the released transcript showed that no distortion occurred, CAR and other filers supportive of the petition said the opposite. “A cursory review of the transcript, when compared to the version of the CBS Interview that aired, demonstrates that the basic accuracy of Ms. Harris’ responses to Bill Whitaker’s questions were distorted by CBS’ editing,” the Fair Election Fund said, adding that CBS also violated federal election laws. “Unfortunately for Americans, the answer is quite simple -- CBS was clearly trying to prevent Ms. Harris from being shown in a negative light.” The transcript “revealed that CBS selectively altered Harris’s responses on key policy issues, replacing her actual answers with more polished statements taken from other parts of the interview,” said the American First Policy Institute.

However, CBS said it “elected to air the first sentence of the candidate’s answer to a foreign policy question in the Face the Nation broadcast, and the third sentence of the candidate’s answer to the same foreign policy question in the 60 Minutes broadcast the very next day." That is “a standard exercise of editorial discretion,” the network said. “News organizations can and do edit news content every day, including for length and clarity. That cannot be and never has been a violation of the news distortion policy,” said the Reporters Committee for Freedom of the Press.

“The Sixty Minutes slice-and-dice of its interview with Vice President Harris is Exhibit A for reckless journalism that fails to serve the public interest,” CAR said. “On the initial answer that was the spark that started the controversy, Harris gave a meandering, 179-word answer on Israel that Sixty Minutes cut to just 20 words, making her appear infinitely more in command and presidential.” CBS said there is no evidence to support CAR’s theory, and if the goal was to change the perception of Harris, it would have had no reason to air two differing clips from the interview on national television. “Had the goal been to improve the candidate’s performance, CBS would have had no reason to air the Face the Nation clip in the first place,” CBS said.

The FCC’s news distortion policy is irretrievably bound up with the defunct fairness doctrine and is unconstitutional, NAB said. It “is contrary to the public interest and the Constitution -- especially as that policy is envisioned by CAR to include governmental second-guessing of broadcasters’ selection and choice of material and even their editing processes.” The policy also contradicts language in the Communications Act that bars the FCC from censoring broadcaster content, NAB and other commenters said. The FCC has never defined what it considers “news” or distortion under the policy, NAB pointed out.

An FCC finding of news distortion against CBS would chill journalism efforts and lead to more complaints, said TechFreedom, CBS and other commenters. “If the new standard for triggering a news distortion analysis is that any edits of raw interview video can be subject to challenge, then the FCC will spend the next four years, at least, fielding dozens, hundreds, thousands of news distortion complaints,” TechFreedom said. The FCC’s duties would “impermissibly bloat,” and the policy could be used by anyone to “take issue with any political content from broadcasters,” Free Press said.

“It does not matter if the FCC closes this proceeding without a finding that CBS violated FCC law or policy: the damage has been done,” the Center for Democracy & Technology said. “Without correction from the FCC and an acknowledgment of its misuse of its power, the broadcaster now understands that failure to comply with the government’s strong-arming will result in repeated and additional scrutiny from the government into its editorial judgment.”