Today’s Ad Law Reading Room entry is “Making Broadcast Content Regulation Aggressive Again,” by Stuart Minor Benjamin. Here is the abstract:

The Federal Communications Commission has statutory authority over broadcasting that far exceeds any governmental authority over online platforms, cable television, or newspapers: Every license renewal or transfer depends on the FCC’s determination that it is consistent with “the public interest, convenience, and necessity.” In its early decades, the Commission used that authority to aggressively regulate broadcast content, and the Supreme Court upheld such regulation. But starting with the Reagan Administration, and continuing through the Biden Administration, the FCC eliminated or curtailed the content regulations it had imposed, with the exception of bursts of indecency regulation in 1987 and the early 2000s. As a result, content regulation of broadcasting was largely quiescent.

The second Trump Administration seems poised to end that long period of bipartisan restraint, underscoring how contingent that restraint always was. In this article I canvass the most important content regulations of broadcasting and the changes to them wrought by Reagan and largely continued by his successors through Biden. I then discuss the key Supreme Court cases that have permitted content regulation of broadcasting before turning to the lack of meaningful administrative law constraints on the FCC Chair’s promised and partially implemented reinvigoration of such regulations.

This leads to the question of possible legal responses to such a reinvigoration. Options exist – both broadcast-specific and more general doctrines, notably including limits on jawboning. But there are legal and practical obstacles, including limits on standing and intermediaries’ misaligned incentives. And a President who makes it clear that he will lambaste anyone he dislikes can achieve the results of jawboning without having to issue a single threat of government punishment or public criticism.

Ultimately, broadcasting serves as a case study in the limits of legal protections for speech when the executive branch is willing to use all available levers, formal and informal, to influence media entities. Norms of self-restraint, rather than legal constraints, have been doing much of the work—and the erosion of those norms would have profound implications for the future of media in the United States.

This article is partly a capsule (and very readable) history of the FCC’s regulation of broadcast content. It’s partly an examination of what the law can do in the face of the second Trump administration’s attack on media it perceives as unfriendly. But it’s also a reminder that formal legal limits may often fail to constrain a president who is committed to breaking the kinds of norms that had previously served to keep the executive in check. Benjamin’s article manages to be both sobering and refreshing, serving up another lesson that looking to litigation and courts alone won’t be sufficient to meet the moment.

The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.