No One Will Challenge FCC and FTC Abuses of Free Speech, Panelists Say
Government speech coercion might be unconstitutional, but companies with business before the government aren't going to push back, panelists said Wednesday during a conference about online speech organized by the Center for Democracy & Technology and Stand Together. Free-speech advocates also criticized the FCC and FTC for increasingly weaponizing their regulatory powers.
Sign up for a free preview to unlock the rest of this article
Communications Daily is required reading for senior executives at top telecom corporations, law firms, lobbying organizations, associations and government agencies (including the FCC). Join them today!
The U.S. Supreme Court's 2024 Murthy case documented widespread government efforts to influence content moderation choices on social media platforms, said Casey Mattox, Stand Together's vice president for legal strategy. The platforms had a strong legal case to fight that government's efforts but weren't likely to challenge regulators, he said. The federal executive branch controls hundreds of billions of dollars in grants and vast regulatory power, so it can make a private business's life miserable, he noted. Businesses are "unlikely to sue the federal regulators who control the tools of regulatory pressure and government largess."
The FCC has so much power over regulatees that whether it actually has legal authority to police speech is a moot point, TechFreedom President Berin Szoka said. Parties regulated by the FCC will do what the agency says it wants and try to anticipate what that is, he added.
Szoka also said FCC processes to ensure fair application in regard to broadcaster license revocations won't work "because no one's going to litigate." A broadcaster licensed by the FCC, a media company with a merger needing agency approval, or a tech company with business before the FTC and DOJ "will not resist [but instead] give the government what it wants. That is anticipatory obedience."
Caitlin Vogus, a senior adviser for the Freedom of the Press Foundation, said FCC actions such as its investigations of NPR and PBS ad practices (see 2501300065) and of KCBS San Francisco (see 2502050051) have sent a clear message to news operations and their corporate owners that they're under close watch and that the agency might come after them if they report news in a way the government dislikes. "That is necessarily going to have a chilling effect on reporting," Vogus said.
Public Knowledge President Chris Lewis said talk-show host Jimmy Kimmel's reinstatement on ABC after being temporarily removed from the air "was just a very small victory for free speech in a sea of losses."
Aside from the existing procedural safeguards, Szoka said, there needs to be a fresh look at power dynamics in FCC and FTC regulations. When a merger designated for hearing by the FCC chairman is effectively dead, "that tells you something about the hearing process," he said. It's not surprising that the FCC "has turned into an instrument" of abusive tactics, given that it has always had undue power that was often kept in check by "some sense of self-restraint." Such norms "have disappeared," he said.
Panelists also agreed on the need for stronger congressional oversight. However, given the power of the FTC and FCC and the lack of effective congressional checks, "all we can do is document what's happening," Szoka said.