Fellow Republicans have rightly pushed back against FCC chairman Brendan Carr’s suggestion that the agency could revoke broadcast stations’ licenses for allowing Jimmy Kimmel to remain on the air after his statements about Charlie Kirk’s assassination. Senator Ted Cruz condemned Carr’s “mafioso” tactics as “dangerous as hell.” Senator Mitch McConnell said that, “as a First Amendment guy,” he thinks Cruz “probably got it right.” Senator Todd Young agreed with Cruz, saying, “we must cherish and protect free speech.”
Democrats have also joined the chorus. In a letter published earlier this month, three Democratic representatives called Carr’s remarks a “transparent act of illegal and unconstitutional censorship.”
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Both parties have a long history of trying to use the FCC to police the speech of their political enemies. But as legislators on both sides of the aisle have realized, using government authority to bully your enemies today will backfire tomorrow when it’s turned against you. Rather than encourage tit-for-tat censorship, Congress should pass a Free Speech Restoration Act, which would prevent the FCC from pulling broadcasters’ licenses based on the speech content in their programming.
This new legislation should address two sources of FCC mischief. The first stems from World War II-era case law and some statutory provisions that give the FCC broad authority to regulate content, notwithstanding the First Amendment. This authority is rooted in the mistaken “scarcity rationale”—the notion that the FCC’s ability to regulate broadcasters’ content is implied by the limited number of radio frequencies—which the Supreme Court has cited to uphold content-based broadcasting regulations. While many legal scholars, and even Supreme Court justices, doubt that these cases are still good law, they remain on the books.
The second source of mischief is the FCC’s flawed interpretation of federal law’s requirement that broadcasters operate in the “public interest.” Properly understood, this requirement empowers the FCC to prevent the airwaves from being overrun by interference or subjected to corrupt favoritism by the government. But under the current administration, the FCC has distorted the public interest standard and sought to use it as a weapon against speech it dislikes.
While most of the FCC’s content-regulation tools—such as the “fairness doctrine” and the “news distortion” rule—have been repealed or fallen into disuse, the agency’s renewed interest in those tools shows that it’s dangerous to leave them lying around.
Congress knows how to deal with mistaken agency practices and court decisions that intrude on First Amendment rights. When lawmakers disagreed with the Supreme Court’s permissiveness of government regulations on religious exercise, they passed the Religious Freedom Restoration Act requiring courts to apply strict scrutiny, rather than the more lenient “rational basis” review, to regulations that burden religious exercise.
Congress should do the same for wireless speech: pass a statute that clarifies that expression over airwaves cannot be subject to special rules. Courts should apply strict scrutiny to content-based regulations of speech, regardless of how that speech is transmitted.
In effect, such a law would let the FCC regulate the content of speech over the airwaves only to serve a compelling government interest, and to do so only in the least restrictive way possible. Congress should also clarify in the statute that licensed broadcasters’ requirement to operate in the public interest is limited to their technical functioning—things like assigning frequencies and setting permissible power levels to manage electromagnetic interference; it does not create a roving mandate for the FCC to make broadcast content conform to its preferences.
A Free Speech Restoration Act would extend to wireless communications the same protections that apply to every other form of expression. Courts should no longer invoke outdated claims of “spectrum scarcity” to place wireless transmissions outside the First Amendment. Nor should the FCC be allowed to wave the talismanic phrase “public interest” to enforce its own idea of what Americans ought to hear. Congress now has a bipartisan opportunity to close the door on speech policing and guarantee that First Amendment rights travel freely across the airwaves.
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