Talking Tech about The FCC, The View, and Press Freedom
We have another exciting show for you! <br>This summer, the Federal Communications Commission's (FCC) Media Bureau took the unusual step of seeking public comment on whether ABC's The View qualifies as a bona fide news interview program and is therefore exempt from the federal equal opportunities rule — despite the program having received that exemption more than two decades ago.<br>While the proceeding centers on a single television program, its implications reach far beyond The View. The FCC's actions have sparked renewed debate over the role of government in evaluating editorial decisions, the distinction between news, commentary, and entertainment programming, and the constitutional limits on government involvement in the press.<br>In this episode, host Jamal Magby is joined by Kate Ruane, Director of CDT's Free Expression Project, and Ashkhen Kazaryan, Senior Legal Fellow at the Future of Free Speech, to unpack the legal, constitutional, and policy questions at the heart of the proceeding. Together, they explore the history of the equal opportunities rule, why news interview exemptions exist, and what this case could mean for broadcasters, journalists, and the public's access to independent news and information.
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Transcript
Welcome to CDT's Tech Talks, where we dish on tech and Internet policy while also explaining what these policies mean to our daily lives. I'm Jamal Magby, and it's time to talk tech.
Welcome to Tech Talk. Bye. CDT.
This summer, the Federal Communications Commission's media bureau took the unusual step of essentially forcing ABC to seek public comment on whether ABC's daytime talk show, The View, qualifies as a bona fide news interview program and is therefore exempt from the equal opportunities requirements of federal communications law, despite already having been granted that exemption more than twenty years ago. This is not simply a technical dispute about broadcast regulation. As many advocates, journalists, and media organizations have highlighted, the proceeding raises much larger questions. What role should the government play in evaluating editorial decisions? Should regulators distinguish between news, commentary, and entertainment programming when it comes to political candidates? And when does regulatory action cross the threshold into unconstitutional coercion? In this episode, we're unpacking the legal, constitutional, and policy issues at the center of this debate. We'll discuss the history of the equal opportunities rule, why exemptions for news and interview programming exist, and what the FCC's actions could mean for broadcasters, journalists, and the public. Joining me for this conversation is Kate Ruon, director of CDC's Free Expression Project, and Ashton Khazari, senior legal fellow at the Future of Free Speech. Together, they'll help us understand what's at stake in this proceeding and why its implications extend far beyond a single television program. Kate and Ash, welcome to the show. Thank you for having me. Thanks, Jamal. Of course. So let's start with the basics. What is the FCC currently considering, and why has ABC asked the agency to formally declare that The View qualifies as a bona fide news interview program?
Yeah. Go for it, Ash.
Okay. So the FCC is considering, taking back the designation that a that the view on ABC has had, that they've had for now twenty four years, which was kind of this news interview exemption. So this all goes back to an old rule. It's called equal opportunities rule. This is all like this boring law that has existed forever. And the idea goes back to the early days of broadcasting where when not none of us were alive, that if a TV or a radio station lets one candidate use, right, be on the airwaves as their campaigning, it has to give the other candidate candidates in that same race, a comparable opportunity to to talk to the listeners of that program. The point was to stop stations from putting their thumb on the scale, for one candidate. Congress pretty quickly realized that if you applied that to news coverage, you'd actually get less political journalism and less educated voters. So because the station would think twice. Right? Like, interviewing any candidate, it meant that, they would owe equal opportunity to any other candidate. So let's think of, like, California governor elections, for example, right now. Right? There's so many people in the running. It just wouldn't be possible just realistically, just time wise. And so what would an editor do? Right? The person who runs a newsroom. They would just probably not deal with that anyway. I'm sure most of the time, news coverage probably gets less viewers than some pop star scandal does. So why would they want to educate viewers or listeners and so on and so forth? So in 1959, congress carved out exceptions for news, including bona fide news interview programs. And the whole purpose was to expand, coverage of campaigns and coverage of candidates. And the view in 2002 in 2002, FCC has itself said that the view qualifies for that exemption. And they've qualified a lot of people for that exemption. We can go into that later. But, basically, now they're rethinking that, and they've put out this formal notice saying, tell us people, do you think that they should still qualify for that exemption? And so that was a proceeding in which senate for democracy and technology and the future of free speech have filed together with ACLU and National
Coalition Against Censorship. Yeah. Yeah. I I just and I would just wanna commend everyone to read those comments, which Ash drafted. They are truly excellent. The only thing I wanna add is a little bit of a broader context that we're sitting in here with the FCC, which since Brendan Carr took over as the chair, has, you know, Brendan Carr has essentially appointed himself the chief censor of this current administration, letting every news program that puts out content that the that this administration or Chair Carr himself doesn't like, know that they are in trouble. So if you think back to when Jimmy Kimmel was taken off the air because he made comments that, chairman Carr didn't like, or you think back to the news distortion proceedings that this FCC reopened even though they had been decided and closed by the previous chair, Jessica Rosenworcel, reversing that decision and and and sort of claiming the authority to decide what is or isn't properly distributed news. This is this all fits into that kind of broader, broader situation of the FCC sort of frequently weaponizing its authority to let broadcasters know or to try to get broad broadcasters to provide coverage that the administration prefers and not provide coverage that it would prefer not to see. So some some have speculated, and maybe this is accurately reported somewhere, that that it it was the view hosting senate candidate James Tallarico that was part of the FCC's decision I to to kind of place its sights on the view, because they they didn't like what what's what senate candidate Tallarico had to say in that in that interview. And now now we're seeing this sort of extraordinary situation where the FCC has said, oh, hey. We don't think that the news exemption is really as broad as we've interpreted to to be for nearly, you know, eighty years. If you wanna know if you still have it, you should ask us. And then letting the and letting kind of the view know that they that if they wanted to keep it, they would they would need to ask to they would need to ask again, to make sure that they continue to have the exemption. It's it's pretty extraordinary, but it's all it's all part of the FCC kind of doing this broad shift toward attempting to control what broadcasters say and attempting to play place pressure on broadcasters
to deliver content that the administration prefers. So and, Kate, I I think you're kind of leading into this, but how has the FCC historically treated programs like The View? Like, what makes this proceeding so unusual? And is there any long standing precedent for exempting interview and news focus programs from equal time requirements? There is a very long standing,
exemption for for programs like the like the view. As as Ash said, you know, for twenty two years, the the view has operated under a decision from the FCC that it does qualify for the new the bona fide news exemption exception from the equal time rule. It is not clear what has changed since then except that Brendan Carr is currently the chair. And, you know, just to put it in context of what other types of programs have qualified, every, you know, evening talk show, like, think of The Tonight Show, that qualifies. Politically incorrect with Bill Maher qualifies. The Howard Stern Show qualifies. Jerry Springer qualifies
or has qualified in the past. So it's definitely yes. As as Kate was saying, definitely the precedent is there, and, also, the test itself was always very much it was very broad, and it relied on good faith of the broadcasters who were kind of self certifying it, to make sure that the commission wasn't straying into the territory of of evaluating content, evaluating speech on these programs because that's where you run head first into the first amendment. So the questions were, is the show regularly scheduled? Does the broadcaster control it? And are the guests chosen based on news judgment, bravo, event, help or hurt a particular candidate? Right. So those are and then so it was and and now what whatever the commission is doing, which I'm not even sure what the strategy here is, as they are going through this process with the view. But whatever they're doing, it is clear that they're adding a question to this test, and the question is very much going to evaluate the speech on the view, which, by the way, I looked it up. Apparently, president Donald Trump has been on the view 18 times. Now was it before he, became president? Yes. But he's been on The View 18 times, and just two weeks ago, vice president J. D. Vance was on The View. It's just, you know, it's again the broadcasters, they decide who to host, and we trust their good faith judgment. And that's been the precedent across the board. And if FCC starts evaluating what kind of conversations they have and what kind of issues they cover and who are these candidates politically, that's when we're gonna really run into the first amendment.
Speaking of the first amendment, CDT and the future of speech have argued that this proceeding raises significant first amendment concerns. What exactly are those concerns, and why does government scrutiny of editorial decisions matter for broadcasters and the public? How could the FCC involvement
in determining what constitutes a legitimate news interview affect press freedom more broadly? I can start, and then I'm gonna throw it to Kate. So the one that is kind of more even overarching, and then when it comes to the first amendment of it all, is the fact that the Federal Communications Commission is engaging in what one would call job owning. It's engaging in this act of flexing its government powers to change how a speaker is expressing itself. And we have some great cases on the books by the supreme court that give us the guidance on how to judge it. So there's NRA v. Villeau, which is a pretty new case from few years ago where a financial regulator in the state of New York, was threatening regulation and threatening audits, I believe, for financial institutions that would work with NRA. And the Supreme Court said absolutely not. That is that is a violation. That is job owning. They also banned them books, which is an older precedent, kind of also building on that. So they they work together. And and the test here is that listen. FCC controls licenses. Right? There's a whole separate issue Kate mentioned in the beginning that FCC is right now getting into with ABC over license licenses for their stations. So that's already one. Right? Second is that the chairman has publicly said so many times different things about ABC and The View specifically, including that they face an uphill battle, which to me at least reasonably reads as predicting an outcome of a proceeding, which again would run into the first amendment. And also the pressure the third part of a test is that the pressure coming is coming through formal channels. We have a declaratory ruling proceeding, and, overall, we're just we're seeing FCC use all the tools in their power and do that through that. And then, I mean, ABC was forced to file a petition to keep doing what they've been lawfully doing for twenty four years. So all of that taken into account, I think we run headfirst into jawboning. And then on top of that, there's also the question of editorial discretion. Kate, do you wanna take that one?
Sure. I'll do my best. So there's like a there's a long and painful history of regulation of editorial discretion over broadcast. So broadcasters have to get as Ash already said, they have to get licenses to broadcast. They need a specific part of spectrum, which they occupy and can then use to transmit speech to people within their broadcast area. The Supreme Court has long held that because broadcast licenses are, quote, unquote, scarce, the government can place additional restrictions on speech that occurs over broadcast. So for example, for a long time, the there was something called the fairness doctrine that was imposed upon broadcasters, where broadcasters had to where where broadcasters had to kind of fairly treat public issues. They had to give all sides of an issue if they were going to cover it even in a news broadcast. That had been roundly criticized, particularly by people that that would have been considered to be conservatives because it was supposed to be a control over editorial judgment of broadcasters. The Supreme Court upheld the fairness doctrine, but it has been so discredited that it has been removed that the FCC has since decided that it is not constitutional. They have they have removed it from the rules, and it is no longer enforced. But there are remnants of that decision that continue to control broadcast speech today. So, for example, it is not legal to transmit indecent speech over broadcast. Indecent speech is is legal. This goes back to the case that related to the, seven dirty words that you can't say on television that you can't say on television or over broadcast, which was the George Carlin comedy, comedy routine. I won't repeat the words, but I do know them.
Or like, the Virginia Jackson too, the Janet Jackson Super Bowl.
So that that that that that is a fleeting indecency case. That's about that's about whether you can restrict just a little bit of indecency. So, like, the George Carlin case was about a protracted routine where he said the words a lot and and referenced them a lot. But the but the Janet Jackson case was about the fact that you saw a a bit of nudity very quickly. I think it was, like, an eighth of a second or something like that. And that was indecent, but it was during it was during the time that indecent speech is prohibited and restricted. So there are really granular rules about what speech can be transmitted via broadcast that are at play here. But even under those rules, that doesn't mean that you that the that the government can dictate what speech can be delivered over broadcast. That doesn't mean they can that doesn't mean the government can dictate all editorial judgment. And that is, like, that is what's at stake in the changes the FCC is proposing to the bona fide news exemption. They have always very broadly interpreted the bona fide news exception to avoid, as they must as the FCC, the constitutional questions that are at issue, to try not to run headlong into the agency making political judgments about whose speech gets to be on the air versus whose doesn't, or imposing those political judgments upon upon broad upon individual broadcasters. The FCC's proposition to narrow the bona fide news exception from the equal time rule is really about the FCC taking more editorial power over broadcasters in a way that is unprecedented even under existing precedent that permits additional government authority
over broadcast speech. A casual listener may see this as just a dispute involving a single television program. Why should people outside of the media industry care about the outcome of this proceeding? And what could the broader implications be for journalists, broadcasters, and audience if the FCC begins taking a more active role in reviewing editorial judgment?
The effect that the viewers and overall our society would experience if ABC and The View lose this battle is not going to be immediate. Right? It's not going to be, like, last September when Jimmy Kimmel show went off the air for a hot second, it's not gonna be that fast. It's gonna be worse because it's gonna slowly seep through the cultural fabric of our nation, where just comp political conversations are gonna either move to different forums and be then had by different different population, for example, or like different age groups because, also, we shouldn't forget that the media landscape and environment is different and fractured in ways where certain age groups watch TV more than other age groups and which part of those age groups is more active voters also plays a role. But I digress. It's not going to be immediate because it's not gonna be something coming off the air. It's just gonna be conversations that are not being had. It's gonna be about chilling of the speech where there's just less speech, less political discussions, and, also, people in newsrooms, journalists, and then people in boardrooms who run these networks are going to be making decisions to please those in power. And it's not going to stop with this administration, and that's the part that I find the most frustrating in the sense that I can't believe they they can think two steps ahead. Because sooner or later, the political power does change. And maybe it's still in hands of Republicans comes 2028, but it's different Republicans, different part of the Republican Party, or maybe it's in hands of Democrats. And if there's anything I know about American politics, it's that if one party uses a tool to their advantage that they have created, the next the other party, the second they're in power, is going to use that tool again themselves. And it's just gonna be this political football that get goes back and forth, and and nothing can be done to then really it's it's so hard. Maybe not nothing, but it's so hard to roll back, the rules of the game if people have been violating them. And and also it will definitely affect the strongest free speech protections in the world, which United States has, and it's gonna change first amendment precedent, which I'm already overall worried about, which we can have a whole separate podcast about. So I think that's why people should care because I think it's going to reshape our society and our political conversations and just our everyday conversations. And listen, I'm watching Love Island every day except for Wednesdays for the past few weeks. And believe it or not, there's some political conversations that are happening around
as people discuss Love Island. And even that might change because, again, maybe broadcasters won't be as comfortable airing certain conversations because they don't want to get in trouble with the government. Yeah. I mean, I think there's a way to look at this. There there's you might the FCC might argue this is narrow. This is only about, you know it's not even just about this one program. It's only about whether and when political candidates have to be given equal opportunities on broadcast stations, and we just wanna make sure that every candidate gets the same opportunities. But what Ash is saying is absolutely true. If you have a if you if you have to give the same time on a news on a news program or a talk show to every single qualified candidate for office, anybody looking at that is gonna think, actually, I don't need to do that because we get some pretty, I'll say, interesting qualified candidates for office that maybe that that maybe actually, probably many reasonable broadcasters, many reasonable producers are gonna say, if we have to have all of these people on the show, a, it's too much time, and b, we don't want to platform some of these more extreme ideas. It's going to be distracting. It's actually not going to inform our audience. If we wanna inform our audience, let's go talk about something else because we cannot talk to the we cannot talk to all of these candidates in a way that is productive. And that is the chilling effect that it that was specifically that that the FCC, when it when it created the the the breadth of this exemption, was trying to avoid. Now they're trying to create it. Now they're trying to create that chilling effect in this in this particularly critical aspect of political conversations. And once they open that door, they'll open it further. And, you know, so, like, Ash's point about Love Island is well taken because if we start here, we just keep moving the goalposts until the administration or the executive branch controls all speech. And everybody everybody who is providing speech over broadcast or anywhere else understands that what they what they say in the speech they host has to be okayed by the administration before they can engage in it, and that is antithetical to the first amendment. I want to talk about quickly a
a thing that happened in 2020. There was a group that had filed with FCC, asking FCC to investigate broadcasters for airing president Trump's co statements about COVID. And the FCC under chairman Ajit Pai, right, Republican appointed, refused. And it said in writing that it does not and cannot and will not act as self appointed, free roving arbiter of truth in journalism. And and I And that was correct. That was a correct thing to say. That is the right answer. And I think it protected Republican president's speech against the complaint from the left. The principle doesn't change because the political target has flipped. And, yeah, I just would like to remind everyone of that. That's sometimes I think the first amendment issues are so complicated, but it always comes down to that. It's like, if if you have this power and it can flip flop and when power when the when the ruling party changes, would you really want the other party to wield this power? And the answer is always no. So yes. So I just it while it's not identical, it's very similar, and they cannot be the arbiter of truth. And that's the last thing we need is the federal censorship commission, like Kate said.
And no less than senator Ted Cruz fully agrees with you, Ash. Right? Like, people that understand that the principle is what matters understand that the principle is what matters and will stand up for it. And and senator Cruz has definitely been a person who has stepped forward and said that, you know, Chair Carr's efforts to control the speech of broadcasters, Chair Carr's efforts to silence Jimmy Kimmel were a a nightmare for free expression and a nightmare for event eventually for the speech of conservatives one day exactly as you point out. I think he said, and I quote, dangerous as hell. Yep.
So so I'll say this is really interesting because this case comes at a time when public trust in institutions, and that includes the media and government regulators, is being heavily debated. How do these proceedings fit into the larger conversation about free expression, media independence,
and government influence over speech? Are there lessons here that extend beyond broadcast television to other forms of media and communication? I can I can start? I I think that's a great question. It's also a very complicated question. Right? The dynamics between what's happening with legacy media versus social media and how overall, as I was saying, depending on an age group or even not depending on an age group, we consume news is is very different. However, what we've seen, and I actually just had a piece today come out, called the first amendment tax. Please read it on the bedrock principle of Substack if you're interested. I talk about the fact that we've seen the Trump administration not only wield some regulatory power and try and jawbone speakers that they don't agree with, but we've also seen them use sometimes strategic litigation even in their private capacity. Right? Like, Trump suing, CBS and ABC and others. And and often, we will we will then see these speakers, even though they have a very strong first amendment case and would win in court, they settle. Maybe they have a merger pending in front of the government. Maybe they have, you know, ABC now is kind of an they they don't they can't even it's a fight or flight, but they can't flight because their licenses are on the line. But often in other cases, they have something else that they don't want to deal with or, honestly, the litigation would be more expensive and their general counsel and their all of their outside counsels are telling them to just settle. So you end up having to pay for continuing to have to exercise your free speech rate, and still you chill your own speech because you don't wanna keep paying in the future. So that's what I'm calling the first moment tax, but I but I think overall, that does chip away from our trust in institutions and I our trust in media. And especially in an age of AI, generative AI, and so many new technologies that make us question reality and what our true fact is, I think we need more than ever some legacy institutions. I mean, I have faith that maybe will be librarians that do reaffirm to us, like, what's true and what's not. Right? Like, they give us some kind of structure to to know what to believe in or at least how to check for information as we as a society are still trying to catch up and teach everyone how to exist in this new world. So, yes, I think it's it's going to have ripple effects and it already is. The the Ginny's out of a bottle. You can't put him back in. So so it it is very concerning.
Yeah. Yeah. I I I think, you know, to add on to what Ash just said, the concern that I have is, you know, institutions don't deserve trust just because they exist. They can destroy that trust for people. And when people don't know what to trust, we wind up with, you know, really concerning situations of no one kind of knowing what to do or what ground truth is. With the broadcast issue, what we're what, like, what we're seeing is, you know, people understand the dynamics that Ash just laid out. They understand that the corporation that some of these corporations have other goals in mind when they make choices that appease the administration or maybe elide some concerns that might exist or maybe soften coverage of something or or of of a news story. And that like, those choices erode trust. But when you saw, for example, when when when Jimmy Kimmel was silenced and there was this sort of groundswell of people coming out of the woodwork to support the idea that, like, he was being censored. Now we have ABC actively asking view the views viewers to weigh in on behalf of the organization to fight for the speech that matters to them. That, I think, is just critically important. It is it is so important for people to be able to have a a a voice that they feel matters and that they feel has an impact. And so, you know, what I what I try to look for is more opportunities to create those situations where we, you know, where we're all kind of rowing in the same direction together to make sure that we're we're protecting our values, protecting our ability to speak truth to power, ensuring that people have places and spaces to to gather and criticize and actively debate ideas. But my concern with the FCC is that they're that that is that they're pushing back against the against this kind of fundamental American value. But people under but, like, but but my my point is people understand that. And if if the FCC manages to take it away from us in in one place, we'll create it somewhere else because that's what, you know, that's what we do. But I I hope that we continue to fight it in on this front as well because it's still a critical thing to do. We have, like, we have to keep we have to keep our ability to express ourselves and to fight for trusted programming. Even if the institution itself isn't trusted, I I I think the view remains relatively trusted. Like like like, keeping those spaces is is incredibly important. And seeing, seeing the fight that's taking place on behalf of the view, on on behalf of the viewers of the view, the view's audience is I like,
it to me, that's the most critical thing. To close this out, looking ahead, what should listeners watch for as these proceedings move forward? And what principles should policymakers keep in mind when approaching questions about media regulation and the first amendment? What would a rights respecting and constitutionally
sound approach look like? The one we've had for forty years or fifty years worked just fine, from from my perspective, but that's a little flippant, as she's gonna start.
I actually agree with you. I agree with a flip yes. Watch whatever the full commission takes up, but I think if it's even if it's resolved at the bureau level, it because it would be a significant change of forty years, it shouldn't be made by I don't know. I think the Janet Jackson saga, right, of what happened post Super Bowl, I think it was caught up in courts for eight years. If you take into account the the the listeners of the show, if they take into account this proceeding plus what's going on with the licenses together, that's one to look after. And then just overall, looking into what FCC is doing, you know, every time they do ask for public comment, engaging with it, expressing their opinion, exercising their first amendment rights. I think overall, staying up to date with so many first amendment issues that are rising up across the country. They're they're so I mean, CDT's work is covering a lot of them. We are working on some of them. It's it's very both concerning, but also, I think, an exciting time for us as a society to stake the claim as generations before us have and say, no. We will never stand for government to make decisions about our speech. And while I am scared, I do have faith in us as a society. We'll see what happens.
Yeah. I think that yes. And Ash's point about it taking eight years to resolve the Janet Jackson case, and if folks don't remember this, you know, during the Super Bowl, I think in 2003, or maybe it was two thousand and four Super Bowl, the Janet Jackson was the halftime performer. At the end of it, there was a moment where Justin Timberlake, who was also performing with her, pulled off part of her costume, exposing her nipple. This was then immediately the subject of an FCC enforcement action for indecency that took, I think, action is actually right on the money with eight years to resolve. So that's that's the timeline we could be looking at, especially if the FCC decides to drag this out. So one of the things that we need to be thinking about is this this FCC and and other places in the executive branch right now have exposed some significant weaknesses in our agency related processes. So what are some of the like, what are some of the things we need to think about changing? What are some of the rights we need to give to people to make sure that they can get out of the agency and into court faster when constitutional rights are at issue? That might that might help this like, a a proceeding like this, which could drag on forever, get resolved more quickly. So, like, thinking about procedural stuff like that is one thing. But but for people who are not lawyers and who aren't going to advocate for Congress or think about those kind of regular those kind of regulatory minutia things, I I would say just, like, staying engaged, continuing to comment, continuing to raise your voice every time you see something is wrong in the world is is critically important because it has shown to be it has proven to be effective. It is it is not hopeless. Every time a a large amount of people engage in a groundswell that opposes a wrong that is happening in the world, be it from this administration, be it from Congress, there there is a reaction from the people in power. They are responsive to it to at least to some degree. So continuing to do that, I think, is critically important for folks. That's very that's super helpful.
Oh, and I'll say, once these proceedings continue to move forward, Kaye and Ash, we may have to have you you back on to to give us an update. But I wanna say thank you so very much to you both for being on Tech Talk today. It's been a pleasure.
I appreciate you. Thank you for having me. Thanks, Jamal. Always fun.
Thank you for listening to Tech Talks, presented by the Center for Democracy and Technology. I've been your host, Jamal Magdi. Tech Talks is edited by Jacob Kaufman and produced by Drew Courtney. Check out more of CDT's work by visiting us online at cdt.org and on various social media at sendem tech. That's c e n d e m tech. Thanks for talking
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