Introduction

Does the federal government have the power to punish broadcasters, by exercising its power over their licenses to use the airwaves, for speech the government does not like, including speech that criticizes the government? With increasing threats, from both the President and the Chair of the Federal Communications Commission (FCC), to do just that, a close look at the Communications Act, which requires licenses to use the spectrum and defines federal supervision, is timely.

The clear answer is “no.” Although the Communications Act says that the FCC shall issue licenses based on the “public interest,” the Act has never been read to allow the government to define the public interest as anything the government says it is. The Supreme Court has confirmed that the Communications Act does not grant the FCC the power to ban controversial speech. Moreover, the Act’s broad considerations in granting licenses are cabined more strictly when it comes to license cancellations. And Congress specifically amended the Communications Act in 1996 to limit the government’s power to deny license renewals.

Even if the Communications Act could be read to give the FCC power to punish broadcasters for speech it does not like, the First Amendment forbids it. Although the Supreme Court has approved some greater regulation of broadcast than is permitted of books, newspapers, and the internet, those decisions do not sanction canceling licenses for the viewpoints expressed.

To be sure, government can trumpet its disagreement with broadcasters’ speech and the speech of those who appear on their airwaves. Governments of all kinds—Democrat and Republican—have done so over the years. Yet actions and even threats to cancel licenses or deny their otherwise valid transfer based on broadcasters’ speech violate the First Amendment, because these are punishments threatened for speech.

Finally, this issue is an especially important reminder of the stakes involved in this administration’s all-out efforts to eliminate the protections long accorded to independent agencies. For its entire history, the Commissioners of the FCC have enjoyed (strong but implied) protection from presidential control—the so-called “for cause” removal protections accorded the multi-member regulatory commissions established to regulate significant industries. Commissioners who can be fired at will by the President have much less power to resist presidential calls to cancel licenses of broadcasters who may criticize the government—or merely broadcast the views of those who do so.

The Communications Act

In today’s communications landscape, in which news and entertainment come through broadcast as well as print, cable and satellite television, and numerous internet services (from social media, to streaming services, to personal media sites such as Substack and Medium, and others), it is easy to forget that broadcasting and broadcasters are subject to a complex statutory and regulatory regime administered by the FCC. Yet, the FCC is a government agency, and its powers are granted and restricted by statute—as are any of the powers claimed by the Executive. So, because it does not play as prominent a role in public awareness today and because I have spent 30 years studying communications law, I want to take a quick turn through the Communications Act. (I here discuss only the current understanding of the FCC’s powers, setting aside arguments that some of its powers are now unconstitutional because of changes in media or that its powers should be read more broadly than current law.)

I focus here on the Communications Act’s provisions on the granting of spectrum licenses, their renewal, their transfer from one owner to another, and the possibility of the FCC’s canceling an issued license. These are the types of action that the President and the FCC Chair have suggested could be warranted based on broadcast speech critical of the government or otherwise disfavored by it. In the most recent such occurrence, both President Trump and FCC Chair Brendan Carr called into question ABC’s licenses and license transfers sought by owners of its affiliates, Nexstar and Tenga, based on Jimmy Kimmel’s statements on the Late Show concerning the murder of Charlie Kirk. The FCC has also launched several investigations of broadcasters based on claims of news bias or alleged false speech, and of course the FCC reviews all transfers of broadcast licenses. Although ABC has reinstated Kimmel and his show, Nexstar, the company with the pending merger request, has decided not to carry the show, and new threats against broadcast are certainly possible, or even likely.

The Communications Act of 1934 established the FCC, and that statute defines the FCC’s authority over broadcast licenses (and all spectrum licenses). The Communications Act states among the purposes of spectrum regulation “to maintain the control of the United States over all the channels of interstate and foreign radio transmission, and to provide for the use of such channels, … under licenses granted by Federal authority.” And the Act broadly states in section 309 that the FCC will grant spectrum licenses if “the public interest, convenience, and necessity will be served.” The Supreme Court has said both that “the Commission’s powers are not limited to the engineering and technical aspects of regulation of radio communication” and that the Act “puts upon the Commission the burden of determining the composition of that traffic.” Nat’l Broadcasting Co. (NBC) v. United States. Yet, the Court has also emphasized that the public interest “criterion is not to be interpreted as setting up a standard so indefinite as to confer unlimited power.”

One of those limits is that the FCC’s broad authority over spectrum licenses does not remotely include the power to rescind licenses or otherwise punish broadcasters for the viewpoints they carry. In NBC, its most extended treatment of the FCC’s “public interest” authority, the Supreme Court emphasized that the FCC’s powers were largely structural. That is, the FCC could set rules regarding ownership and otherwise structure the licensing market to ensure that radio service as a whole—including its ownership diversity, which would indirectly ensure content diversity—served the public. The Court there affirmed limits on the ownership of broadcast licenses by chains (networks), noting Congress’s concern over “’monopolistic domination in the broadcasting field.’” The Court’s other examples include regulation of interference, the geographic allocation of licenses, and the definition of power requirements—all to ensure multiple broadcasters and multiple voices could be heard by the public.

If there were any doubt whether the Communications Act granted the FCC power to deny licenses on the basis of viewpoint, the Supreme Court in NBC also put a rest to that. The broadcasters challenging the restrictions on chain ownership mounted a First Amendment challenge to denying them licenses. The Court easily rejected that claim, which it characterized as an argument that everyone who wanted a broadcast license had a constitutional right to one. Yet it also used this to again delimit the FCC’s statutory authority: “Congress did not authorize the Commission to choose among applicants upon the basis of their political, economic or social views, or upon any other capricious basis. If it did, or if the Commission by these Regulations proposed a choice among applicants upon some such basis, the issue before us would be wholly different.”

To be sure, FCC actions in granting licenses have sometimes considered the content of a broadcasters’ offerings. In the 1970s, for example, the FCC used its public interest authority to examine broadcasters’ proposed changes in format (news, top 40, and classical music, for some examples). And the D.C. Circuit upheld, indeed promoted, this practice. In 1976, the FCC concluded that such review was neither required by the Communications Act nor prudent, and that diversity in programming would be furthered through market forces. In FCC v. WNCN Listeners Guild, the Supreme Court upheld the FCC’s retreat from such regulation. The Court specifically said that the FCC’s choice was “consistent with the legislative history of the Act. Although Congress did not consider the precise issue before us, it did consider and reject a proposal to allocate a certain percentage of the stations to particular types of programming.”

Indeed, the Communications Act itself seems to preclude FCC action to control the content or viewpoints that broadcasters offer. Initially part of the 1927 Federal Radio Act, section 326 of the current Act flatly states:

Nothing in this chapter shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication.

Based only on this text, one would think it clear that the FCC may not use its licensing authority to “interfere with the right of free speech” (and that I have here buried the lede). Yet, the Supreme Court, in the Pacifica case, has held that section 326 only forbids the FCC to impose prior restraints on speech. In the next section, we will also revisit cases in which the Supreme Court has held that broadcasters enjoy less First Amendment protection than (all) other media.

Although the FCC generally acts under the “public interest” standard when granting and regulating licenses, the Act imposes more limits on FCC actions that would cancel licenses or deny their renewal or transfer. Although spectrum licenses have limited terms, the FCC itself administratively expanded broadcasters’ expectation of renewal, as Howard Shelanski and Peter Huber have recounted. And in 1996, Congress eliminated the former process of comparative renewal hearings (§ 309(k)(4)), under which broadcasters would have to show that their offerings are the best among any others seeking to take over the license. The Act also generally requires that, before a license can be revoked, the FCC establish, on the basis of evidence, that the licensee has engaged in “willful or repeated” violations of the Act, FCC rules, or its license.

One last power to consider is the FCC’s authority to review and grant or deny the transfer of a broadcast license, because of the above explicit (or implicit) threats the administration has made to deny mergers if the applicants do not change the speech on their channels. (A merger changes control over licenses, triggering the FCC’s authority over transfers.) Congress eliminated comparative hearings on transfers even earlier than on removal, in 1952 amendments to the Act. Transfers are only to be denied if they do not meet the public interest standard or if they violate one of the FCC’s structural rules designed to ensure robust ownership diversity. But, as noted above, the FCC does not have the authority to make its determination based on viewpoint directly.

To be sure, the President and the Chair have said that Kimmel made a false statement. Kimmel is not a news program, and so even the few and questionable FCC precedents (none of which has ever resulted in a license revocation) on “news distortion” do not apply, as Stuart Benjamin has discussed. The better characterization of the complaints, however, is that the President and the Chair believe the media to be biased—which means this is viewpoint discrimination.

In short, the FCC does not have authority under the Communications Act to rescind licenses, punish licensees, or deny transfers based on the viewpoints expressed by a broadcaster or on its air.

The First Amendment

Even if the FCC had authority under the Communications Act to regulate broadcaster viewpoints, such regulation would almost certainly violate the First Amendment. The “almost” qualification exists solely because the Supreme Court has to date given broadcasters more limited First Amendment protections than print, cable, and the internet. If evaluated anew, these precedents are likely invalid; the Supreme Court has pointedly refused to reaffirm them. Even under these older cases, the threatened sanctions would not be upheld.

I will be briefer here, as this is reasonably well-trodden ground. “As a general matter,” the Supreme Court said in an internet case, “government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” The usual test for government regulation of the content of speech is “strict scrutiny,” which means government regulation of content can only be upheld based on a “compelling government interest” and with rules that are the “least restrictive means” of furthering that interest. Under strict scrutiny, the Court has struck down many forms of media regulation.

Nevertheless, the Court has approved some content regulation of broadcasters, usually on the theory that the scarcity of spectrum (not everyone who wants a license can get a license) allows greater government regulation. For example, the Supreme Court has specifically permitted regulation of indecent content (which regulation is forbidden for any other medium) and of the so-called “Fairness Doctrine” regulations, which, until their repeal under the Reagan Administration four decades ago, required broadcasters to cover matters of public interest and granted limited “rights to reply” if broadcasters editorialized. These are the well-known Pacifica and Red Lion cases, decided during the heydays of broadcasting (1978 and 1969 respectively). Indecency regulation was permitted only because of the pervasiveness of broadcast and its unique accessibility to children. The Fairness Doctrine was upheld because it did not limit broadcasters’ own expression but only granted a limited right of reply to personal attacks and broadcasters’ political endorsements. Indeed, the Red Lion Court even rejected the broadcasters’ view that the right of reply would chill broadcasters’ speech on important public issues. (The Supreme Court struck down a right of reply statute that applied to newspapers.)

The threatened sanctions, the cancellation or limitation of broadcaster licenses, proposed by President Trump and FCC Chair Carr are different, for they would directly punish broadcasters’ speech and because they are based not just on content but on viewpoint. The Supreme Court has treated viewpoint regulation as nearly per se unconstitutional:

When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.

Viewpoint discrimination is even more dangerous when it cuts off criticism of the government: “[D]ebate on public issues should be uninhibited, robust, and wide-open, and … it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”

Indeed, the Supreme Court made exactly this distinction between permitted and unpermitted broadcast regulation when it struck down a statute that prohibited editorializing by noncommercial broadcasters. The Court acknowledged that Red Lion and other precedents permitted greater content regulation of broadcasting. Crucially, however, the Court held that a ban on editorializing cut to the heart of the First Amendment:

As we [have] recognized …, the special place of the editor in our First Amendment jurisprudence reflects the fact that the press, of which the broadcasting industry is indisputably a part, carries out a historic, dual responsibility in our society of reporting information and of bringing critical judgment on public affairs.

To permit the government to use any of its power to cut off criticism violates the First Amendment.

The Threats

Of course, the FCC has not yet rescinded any broadcast license or denied any license renewals or transfers based on broadcasters’ political speech. At least so far as we know, though some reporting suggests that the Paramount-SkyDance merger approval turned in part on CBS ending Steven Colbert’s run on the Late Show. Perhaps even ABC’s decision to suspend or terminate Jimmy Kimmel was its own private decision.

The Supreme Court, though, in 1963 made clear that the “threat of invoking legal sanctions and other means of coercion … to achieve the suppression” of speech can, even standing alone, violate the First Amendment. The Court recently reaffirmed this, when it found a possible violation of the First Amendment where the superintendent of the New York Department of Financial Services was accused of using its regulatory authority to pressure organizations to cease associating with gun-promotion advocacy groups. In the 2024 case of NRA v. Vullo, the Court started by saying—as noted above—that “[a] government official can share her views freely and criticize particular beliefs, and she can do so forcefully in hopes of persuading others to follow her lead.” Yet, “a government official cannot do indirectly what she is barred from doing directly: A government official cannot coerce a private party to punish or suppress disfavored speech on her behalf.” While each case will depend on an examination of the particular facts, a First Amendment violation can be pursued if “the government … conduct …, viewed in context, could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff’s speech.”

One may ask nice questions about who can sue or be sued based on threats—the broadcaster or the speaker the broadcaster censors, on the one hand, and the FCC Chair or the President on the other. But, in all events, some threats of legal sanction will violate the First Amendment.

Coda: Independent Agencies

Congress created the FCC, like many government agencies created during the Progressive and New Deal eras (and a few more modern examples), to regulate a significant industry and to do so with some insulation from politics. Principally, Congress did so by providing, explicitly or implicitly, that the President could remove the heads of these agencies only for cause. (In the FCC’s case, these protections are not explicit in the text of the Communications Act but have generally been implied from the Act’s other provisions for agency independence—a multimember, bipartisan commission with 5-year staggered terms.)

For 90 years, the Supreme Court has held that such protections are constitutional. Yet, as part of its agenda to remake the administrative state, the current administration has fired members of several of these agencies without cause. The legality of these firings has been presented to the Supreme Court in the form of applications for stays of lower court orders finding the firings to be illegal. The Court has allowed the firings to stick, so far, pending decisions on the merits. On Monday, September 22, the Court set oral argument in the case of the firing of an FTC Commissioner for December of this year.

Protection for FCC Commissioners relates to the agency’s ability to resist political pressures from the President and others. FCC Chair Carr seems to agree that broadcasters need to be further controlled. But if he disagreed—or a majority of FCC Commissioners disagreed with him and with the President—and the Supreme Court holds “for cause” protections to be unconstitutional, any President faced with an FCC unwilling to use its full powers to suppress speech could simply fire Commissioners until he found a batch willing to do so.

James B. Speta is the Elizabeth Froehling Horner Professor of Law at Northwestern University Pritzker School of Law.