Speaking to a ballroom full of broadcasters, the Chairman of the Federal Communications Commission harangued them with a dire warning: “Clearly at the heart of the FCC’s authority lies its power to license, to renew or fail to renew, or to revoke a license. As you know, when your license comes up for renewal, your performance is compared with your promises. I understand that many people feel that in the past licenses were often renewed pro forma. I say to you now: renewal will not be pro forma in the future. There is nothing permanent or sacred about a broadcast license.”

Those words were delivered by Newton Minnow, President John F. Kennedy’s FCC chair, longtime Democratic pol in Chicago, future mentor of Barack Obama, and father of sometime Harvard Law dean Martha Minnow. 

They are not very different from a recent tweet by President Trump’s FCC chairman, Brendan Carr: “Broadcast licenses are not sacred cows. These media companies are required by law to operate in the public interest. If they don’t, they are going to be held accountable, as the Communications Act requires.”

Though Minnow’s speech was applauded as part of the New Frontier agenda, Carr’s campaign to reinvigorate the public-interest standard has met with significant pushback and accusations of unconstitutionality, including a recent article for this journal by Northwestern’s Professor James Speta.

Respectfully, that essay and many others like it misconceive the core issues at stake in this debate. This is not about suppressing a viewpoint, but about the fact that media outlets suppress news contrary to their public interest obligations. It’s not about viewpoint discrimination but about promoting the viewpoint diversity that has long been an FCC policy goal.

The Communications Act charges the FCC to administer its broadcast media policy “in the public interest, convenience, and necessity.” Those are broad phrases, and so the Commission has over decades developed its own body of precedent interpreting and applying them. Ensuring the integrity of the news and promoting a diversity of viewpoints on air are longstanding components of that doctrine and entirely appropriate goals for an FCC chairman to pursue.

The importance of news integrity to the public interest

Delivering the news to the American people is at the heart of the Commission’s understanding of the public interest. As trustees of a public asset in a democracy, it is far more important that broadcasters give viewers fair and fact-based news than soap operas, romances in tropical paradise, or game shows.

And broadcasters need to deliver the actual news—“fair, unbiased, and fact-based reporting,” to quote a recent FCC order. The opposite of that is “deliberate distortion, slanting, or suppression of news,” which “would be patently inconsistent with the public interest.”[1]

Now, Commission enforcement in individual cases shows an appropriate caution to respect broadcasters’ First Amendment rights (which, the Supreme Court has said many times, are more limited than those of print and cable news outlets). Carr’s public comments on 60 Minutes, “Maryland father” Kilmar Abrego Garcia, and Jimmy Kimmel all highlight individual instances of the same underlying problem—broadcast news frequently distorts, slants, and suppresses the news to the consistent benefit of one political party and to the detriment of the American people.

In one of the most egregious cases in the Commission’s history, the owner of Star Stations told his news director that “only positive news items regarding [the owner’s preferred candidate for U.S. Senate] and negative stories concerning [his opponent] were to be carried.”[2] The Commission yanked his license for this obvious betrayal of the public interest. Under Professor Speta’s analysis, that decision was unconstitutional because it was based on the owner’s speech and his viewpoint about these two candidates. I have no doubt, however, that the Supreme Court would be entirely comfortable with the FCC’s decision—it is an obvious abuse of the public airwaves to treat them like one’s private property and to shape the news in line with one’s personal political agenda.

Yet the problems at Star Stations now seem to characterize all the news. As Judge Laurence Silberman observed in a blistering opinion in 2021, “we are very close to one-party control” of the press. “Nearly all television—network and cable—is a Democratic Party trumpet.” That’s fine on cable, but it’s not how it’s supposed to be on the networks. The public airwaves cannot be run like a “narrow partisan circus” (in Chairman Carr’s phrase). Democratic Commissioner Jonathan Adelstein warned twenty years ago that certain broadcasters were “promoting an ideology or unbalanced political agenda thinly disguised as journalism.” From the right or the left, that doesn’t meet the public interest. Broadcasters must serve the entire public—Republicans and Democrats—with news that is “fair, unbiased, and fact-based,” and then let citizens make their own decisions. When they fall short of those obligations, the FCC needs to push them to come into compliance or give their licenses to someone who will serve the entire public.

Not viewpoint discrimination but viewpoint diversity

Second, the Commission has long held that a core component of the public-interest standard is promoting viewpoint diversity among licensees. As Judge Joseph Scirica of the Third Circuit has explained, “the Commission identified three longstanding policy goals that would continue to guide its ownership rules: diversity, competition, and localism. The Commission found five types of diversity relevant to ownership policy: viewpoint diversity, program diversity, outlet diversity, source diversity, and minority and female ownership diversity. Viewpoint diversity applies to the availability of media content reflecting a variety of perspectives. This goal endeavors to ensure a robust marketplace of ideas.”

As the Supreme Court itself has said in an FCC case, “assuring that the public has access to a multiplicity of information sources is a governmental purpose of the highest order, for it promotes values central to the First Amendment.” The Court has several times quoted the Commission’s view: “It has long been a basic tenet of national communications policy that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.”

“Diverse and antagonistic sources” is not modern network news. Part of the problem with “news bias” is that all the viewpoints always come out the same way regardless of the channel or program. A viewer can flip from ABC to NBC to PBS and find the same liberal viewpoint over and over and over. A late-night fan can go from Colbert to Kimmel to Fallon to Meyers and find all the jokes only make fun of one political party.

Promoting viewpoint diversity on the airwaves does not undermine the First Amendment or our democracy—it promotes these values. As (Republican) then-Chairman Kevin Martin has written, “A robust marketplace of ideas is by necessity one that reflects varied perspectives and viewpoints. Indeed, the opportunity to express diverse viewpoints lies at the heart of our democracy.” His Democratic colleague, Commissioner Jonathan Adelstein, similarly observed: “We should be preeminently concerned with diversity in news and editorial opinion. . . . Diverse sources, particularly in news, editorial opinion, or educational programming, provide for a better informed public and a better media watchdog.”

The Commission has utterly failed at achieving this policy goal. Broadcast television does not feature diverse sources of news or editorial opinion. The networks are not a marketplace of ideas but a monolith of ideas—liberal ideas. To call out that fact is not viewpoint discrimination against liberals—it is a legitimate regulatory evaluation of their (non)compliance with the Commission’s policy objectives. When that regulatory review reveals a real problem, the Commission should remind licensees of their obligation to promote viewpoint diversity or discuss the need to transfer licenses to new owners who will ensure viewpoint diversity.

 A concluding reflection on Kimmel

Though the controversy around media policy and President Trump’s calls to remove licenses from broadcasters has percolated for a decade, it came to the national fore with Jimmy Kimmel’s monologue following Charlie Kirk’s death. That monologue’s insensitivity to both the facts and the national mood was the ultimate manifestation of the deeper problem: Kimmel thinks his show is his personal platform to promote his partisan politics. Kimmel headlined the largest fundraising event in Democratic Party history, and he’s absolutely free to lend his celebrity to candidates off-air. But he cannot use the public airwaves to advance his personal political preference for one party any more than the owner of Star Stations could.

He dedicates his monologue to railing on just one politician (Donald Trump) and just one political party (the Republicans) night after night. His jokes target conservatives 97 percent of the time. He has hosted dozens of Democratic guests in the past four years, but exactly one Republican—My Pillow’s Mike Lindell, whom he lampooned mercilessly even as his left-leaning guests got softball interviews. He frequently (mis)uses his show to host Democratic candidates to whom he has given max-out campaign contributions, a fact he never discloses to his viewers. This is just as much hijacking the airwaves to benefit the host’s personal political agenda as in Star Stations.[3]

The blunt fact remains that there is a tremendous trust gap between the American people and the legacy media: Gallup’s polling this year found a historic new low that barely a quarter (28%) of Americans trust the national news media. In my view, that lack of trust is largely fueled by an accurate perception that the media are in the bag for one political party regardless of the facts, a storyline shown over and over again during COVID, the Biden presidency, and now the BBC scandal.

Broadcast television uses a public asset. It was not meant to be a permanent propaganda machine for a single political party. For the chairman of the FCC to point that out is not viewpoint discrimination or jawboning but legitimate and desperately needed regulatory oversight.

Daniel Suhr is president of the Center for American Rights, a public interest law firm. He regularly practices before the FCC, including by filing several complaints discussed herein.

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[1] In re Ballard, 23 F.C.C.2d 754, 755 (BB 1970).

[2] In re Star Stations of Ind., Inc., 51 F.C.C.2d 95, 106 (1975).

[3] It’s no excuse to say Kimmel is “just entertainment”—the Commission rejected precisely that excuse when Democrats attacked Jay Leno for hosting then-California Governor Arnold Schwarzenegger, finding that a late night show functioned as a news program when it interviewed political guests.