Recently, FCC staff dismissed a request by the organization Free Press asking the FCC to investigate the broadcast of the President’s press conferences on the coronavirus and programs where commentators supported the President’s pronouncements. In addition to an investigation, the request asked that the FCC require that broadcasters “prominently disclose when information they air is false or scientifically suspect” in relation to these press conferences and other broadcasts. Free Press suggested that the FCC had the authority to take this action under its broad mandate to regulate in the public interest. It also cited the FCC’s hoax rule as providing support for such an action. As we have written before, the hoax rule is designed to prevent broadcasts that pose the risk of imminent harm to the public by potentially tying up first responders and emergency response teams for purported disasters and crimes that are not real. FCC staff dismissed the Free Press complaint, finding that the FCC is forbidden by Section 326 of the Communications Act from censoring the speech of broadcasters or otherwise abridging their freedom of speech. These First Amendment principles largely keep the FCC out of content regulation (with the limited exceptions of regulation in areas like indecency, obscenity and sponsorship identification where the message is not being censored, just certain means of expression).
In the Free Press decision, the FCC concluded that, in covering a breaking news story like the pandemic, it would be impossible for a broadcaster to fact check every statement made in a press conference and correct any misstatements in anything approaching real time, as there is so much room for interpretation of any statement made on these ongoing matters. It would also be impossible for the FCC to police any such mandate without trampling on First Amendment principles, as it would require the FCC to become the arbiter of the truth for many claims made on television. The FCC declined to take on that role, and noted that the hoax rule is narrowly drawn to avoid these First Amendment issues. That rule only punishes clearly false broadcasts that could foreseeably tie up first responders or cause substantial public harm. It does not get the FCC involved in evaluations of the truth of political statements and policy pronouncements. This is a position that has consistently been taken by the FCC, and one that we often see misstated in connection with demands for the take-down of issue advertising and non-candidate political attack ads.
Continue Reading FCC Denies Application of Hoax Rule to Trump Press Conferences on COVID-19 – Looking at the First Amendment and the Commission’s Regulation of Political Speech