Sixty years ago, Newton Minow, making his inaugural public address as President John F. Kennedy’s chairman of the Federal Communications Commission (FCC), famously told a National Association of Broadcasters convention that television of the day too often was a “vast wasteland,” and he declared that the FCC would enforce the law’s requirement that they serve the public interest.1 While Minow’s phrase remains memorable, his call for the FCC to serve the public interest remains largely aspirational in today’s environment of proliferating and polarizing “news” outlets.
August 04, 2021 Feature
Worse than a Wasteland: Protecting Consumers of Cable “News” in the Public Interest
By Marie Fang, Elana Handelman, and Lucia Radder
Technology has transformed the media landscape, and today’s consumer has a far richer choice of viewing content, accessible on a multitude of platforms. But today’s consumers, for all the diverse viewing choices available to them, face something far worse than a wasteland. As the COVID-19 pandemic has sadly brought into sharper focus, the lack of effective regulation of cable news has become a life-or-death matter, directly affecting the health of millions of Americans. Day after day, as the virus spread and spiked and the public health crisis deepened, false statements of fact about the global pandemic bombarded consumers. Consumers desperate for truth and guidance turned to cable news programs that increasingly offer opinion panels and commentary in lieu of reporting. Opinions can shape narratives but cannot change facts, and studies indicate that some media may have helped to spread confusion about the seriousness of the coronavirus, with resulting harm to public health.2
This is not a new phenomenon, albeit it has grown to become a dangerous one with the rise of the 24-hour news cycle. In 2018, the RAND Corporation released a report explaining how political and civil discourse in the United States has become a form of “Truth Decay.”3 The study found one major contributor to this trend is the blurring of the line between opinion and fact.4
The FCC has the authority and tools to combat this problem in broadcast and cable news. The FCC has chosen not to enforce its rules, while certain “news” programs increasingly obscure facts, or worse. As the nation gradually recovers from the ravages of the pandemic, this is an apt moment to reaffirm the FCC’s obligation to serve the public interest. The FCC should engage in a renewed effort to combat false statements of facts, cloaked as opinions or other nonregulated speech, across broadcast and cable television news media.
FCC’s Past Practice
Historically, the FCC has taken a limited role in overseeing the content of news programs.5 Within the confines of the First Amendment, the FCC is able to regulate news content in two primary ways: first, through its news distortion policy, and second, through its rule against broadcast hoaxes.6 These regulatory avenues exist in theory but are underutilized, and the FCC’s lack of action has allowed news programs to blur the line between facts and opinions now more than ever before, misinforming viewers and disserving the public interest.
The FCC’s policy against news distortion allows the agency to revoke broadcast licenses when there is evidence that management-level employees deliberately intended to mislead the public about a significant event.7 Proving a violation occurred requires evidence that is often hard to get, such as proof of directions from station management to employees.8 Although the D.C. Circuit Court of Appeals seemingly loosened this evidentiary requirement in the 1998 case Serafyn v. FCC,9 by allowing the inaccuracy of a broadcast alone to be indicative of the broadcaster’s intent, the FCC has been reluctant to find news distortion in any cases since 1999.10
The FCC’s rule against broadcast hoaxes allows the agency to fine stations that present false information concerning a crime or catastrophe if (1) the station knew the information was false, (2) broadcasting the information directly causes substantial public harm, and (3) it was foreseeable that broadcasting the information would cause the harm.11 In March 2020, Free Press submitted a petition to the FCC alleging that broadcasters who cover statements, like former President Donald Trump’s, about the efficacy of hydroxychloroquine, without also including disclaimers that the statements may not be accurate, could be in violation of the broadcast hoax rule.12 However, the FCC dismissed the petition, stating that because broadcasters were covering an evolving public health crisis, it is difficult to corroborate statements in real time.13 The FCC further maintained that it is not an “arbiter of truth in journalism.”14 Regardless of whether the petition presented the appropriate occasion to exercise its regulatory oversight, the FCC’s statement was too broad and dismissive of the public interest.
The FCC’s regulatory policies have in large part been shaped by the public interest standard. The term public interest appears numerous times throughout the Communications Act, which created the FCC, and it is the “ultimate guide by which the FCC’s actions are evaluated.”15 In rejecting Free Press’s petition regarding violations of the broadcast hoax rule, the FCC stated that providing live coverage of presidential briefings is in the public interest, even if it is difficult to corroborate the statements in real time.16 However, in a world where falsified facts cloaked as opinions have contributed to a public health crisis, can the FCC still insist its lack of regulatory enforcement is in the public interest? The authors believe the FCC should recognize that it does not serve the public interest when it allows its licensees to circulate falsehoods regarding a public health crisis.
Facts and Opinion Under the First Amendment
False statements of fact are not placed beyond regulation merely by embedding them within opinion. Indeed, the U.S. Supreme Court has made clear that false statements cloaked in opinion can give rise even to monetary damage claims. While defamation law includes elements irrelevant to the issue of regulation here, case law developed in that context have addressed the scope and extent to which the First Amendment protects false statements of fact.
A case decided 30 years ago remains instructive. In Milkovich v. Lorain Journal Co., the Supreme Court found that opinions that imply a false assertion of fact are actionable.17 The Court held that the dispositive question is whether a reasonable factfinder could conclude the statement implies a provably false assertion of fact.18 In cases that followed, courts analyzed the broad context, specific context and content, and falsifiability of the statement at issue,19 according varying weights to these factors. While some courts focused on the statement’s context,20 others stressed its “ready ascertainability.”21 However, a court that finds a false statement of fact protected simply because it is embedded in commentary fails to follow the Court’s clear holding in Milkovich that context cannot protect a provably false statement of fact. Because “expressions of ‘opinion’ may often imply an assertion of objective fact,” speakers do not gain constitutional protection for false factual assertions by “[s]imply couching such statements in terms of opinion.”22
More recently, courts have cited Milkovich in stating a simpler test: “statements of opinion which imply a false assertion of fact are actionable.”23 These cases emphasize a statement’s falsifiability. Of “foremost importance” is that “statements ‘must be provable as false’ before there can be defamation liability.”24 These court have properly emphasized the core teaching of Milkovich—while context remains a factor, it should not excuse a false factual statement simply because it is embedded within commentary.
The FCC and the Public Interest Today
The FCC has the authority to regulate in the “public interest,” and the Supreme Court has been deferential to the FCC in implementing regulations to this end.25 In a guide for consumers, the FCC has stated that “rigging or slanting the news is a most heinous act against the public interest.”26 If the FCC truly believes that, it must intervene.
The FCC will not need to reinvent the wheel to regulate cable news. The news distortion framework, although currently only applicable to broadcast television, should apply to cable television. The commission has already asserted jurisdiction over cable network content in the case of obscene material, as it is not protected by the First Amendment.27 News distortion should be treated similarly because of the special impact of televised news28 and the lesser First Amendment standard for reckless or knowing falsehoods.29
To decide whether there is an implied statement of fact in a news report, the FCC should follow recent court decisions and view the statement from the standpoint of the reasonable consumer. As a recent decision found, the test is “not how readers did interpret [the statement], or even how they would interpret them. Rather, it is whether a reasonable factfinder could conclude that a contested statement implies an assertion of objective fact. Demonstrating that some readers did not, even if true, would not be dispositive.”30 While context will inform the meaning of ambiguous statements, a literal falsehood—a provably false assertion of fact—does not become ambiguous simply by being stated in the course of statements of opinion.31 The context of a statement is important with respect to other factors under the news distortion standard, including whether the circumstances indicate knowledge of falsity, but should not be used to convert statements of fact into mere statements of opinion.
The FCC has the authority and obligation to regulate cable networks. Critics might argue that the Cable Communications Policy Act does not provide for new restrictions. However, the news distortion framework predates the Cable Communications Policy Act, meaning the objection would not apply.32
Others may suggest that the FCC should refrain from regulation because the competing cable networks have an incentive to battle in the marketplace of ideas, where the “remedy for speech that is false is speech that is true.”33 But that premise fails here, given the balkanization of the news media marketplace, where viewers choose the channel that matches their partisan leanings and the individual news channels have shown little inclination to correct their errors.
Trustworthy, fact-based news is critical to the American public. The FCC should use its existing tools and authority to ensure that televised news is accurate. The FCC should (1) enforce existing rules to police news distortion and hoaxes in televised news; (2) extend, if necessary, the news distortion policy and hoax policy to cable news; and (3) revise the news distortion standard so that it is an effective and usable tool against the misinformation of audiences.
The FCC should fulfill its mandate to regulate in the public interest and for the public interest. The Biden administration should consider the same in framing policy and in appointments to the commission.
Endnotes
1. Newton N. Minow, Address to Nat’l Assoc. of Broad.: Television and the Public Interest (May 9, 1961), available at https://www.americanrhetoric.com/speeches/newtonminow.htm.
2. Christopher Ingraham, New Research Explores How Conservative Media Misinformation May Have Intensified the Severity of the Pandemic, Wash. Post (June 25, 2020, 7:48 AM), https://www.washingtonpost.com/business/2020/06/25/fox-news-hannity-coronavirus-misinformation.
3. Jennifer Kavanagh & Michael D. Rich, Truth Decay: An Initial Exploration of the Diminishing Role of Facts and Analysis in American Public Life, RAND Corp. (2018), https://www.rand.org/pubs/research_reports/RR2314.html.
4. Id.
5. The Public and Broadcasting: Broadcast Programming, FCC.gov, https://www.fcc.gov/media/radio/public-and-broadcasting#JOURNALISM.
6. Id.
7. Serafyn v. FCC, 149 F.3d 1213 (D.C. Cir. 1998).
8. The Public and Broadcasting, supra note 5.
9. 149 F.3d 1213.
10. Joel Timmer, Potential FCC Actions Against “Fake News”: The News Distortion Policy and the Broadcast Hoax Rule, 24 Comm. L. & Pol’y 1 (2019).
11. The Public and Broadcasting, supra note 5.
12. Joel Timmer, Broadcasters and Trump’s False Information on Coronavirus: What Role for the FCC?, Just Sec. (Apr. 27, 2020), https://www.justsecurity.org/69843/broadcasters-and-trumps-false-information-on-coronavirus-what-role-for-the-fcc.
13. Id.; Press Release, Fed. Commc’ns Comm’n, FCC Affirms First Amendment by Denying Petition Seeking to Suppress Coverage of White House Coronavirus Task Force News Conferences (Apr. 6, 2020), https://docs.fcc.gov/public/attachments/DOC-363545A1.pdf.
14. Timmer, supra note 12.
15. Daniel J. Smith, Stay the Course: A History of the FCC’s Response to Change in the Cable Industry, 13 J.L. & Pol. 715 (1997).
16. Timmer, supra note 12.
17. 497 U.S. 1, 3 (1990).
18. Id.
19. Neumann v. Liles, 358 Or. 706, 717 (2016).
20. Herring Networks, Inc. v. Maddow, 2020 WL 2614857, at *3 (S.D. Cal. May 22, 2020).
21. Bussie v. Lowenthal, 535 So. 2d 378, 383 (La. 1988).
22. Milkovich, 497 U.S. at 18 and 19.
23. Overhill Farms, Inc. v. Lopez, 190 Cal. App. 4th 1248 (2010). See also La Liberte v. Reid, 2020 WL 3980223, at *9 (2d Cir. July 15, 2020). See also Franklin v. Dynamic Details, Inc., 116 Cal. App. 4th 375, 385 (2004).
24. Phantom Touring, Inc. v. Affiliated Publ’ns, 953 F.2d 724, 727 (1st Cir. 1992).
25. See FCC v. WNCN Listeners Guild, 450 U.S. 582, 596 (1981) (quoting FCC v. Nat’l Citizens Comm’n for Broad., 436 U.S. 775, 810 (1978)): “Our opinions have repeatedly emphasized that the Commission’s judgment regarding how the public interest is best served is entitled to substantial judicial deference. . . . The Commission’s implementation of the public-interest standard, when based on a rational weighing of competing policies, is not to be set aside . . . for ‘the weighing of policies under the “public interest” standard is a task that Congress has delegated to the Commission in the first instance. . . .’” See also Mark Emery, Regulating Televised News: A New Season for the Public Interest Standard, 19 Notre Dame J.L. Ethics & Pub. Pol’y 737 (2005), available at http://scholarship.law.nd.edu/ndjlepp/vol19/iss2/21.
26. Complaints About Broadcast Journalism, Fed. Commc’ns Comm’n, https://www.fcc.gov/consumers/guides/complaints-about-broadcast-journalism (last updated Jan. 12, 2021).
27. Obscene, Indecent and Profane Broadcasts, Fed. Commc’ns Comm’n, https://www.fcc.gov/consumers/guides/obscene-indecent-and-profane-broadcasts (last updated Jan. 13, 2021). Obscene content does not have protection by the First Amendment. For content to be ruled obscene, it must meet a three-pronged test established by the Supreme Court: It must appeal to an average person’s prurient interest, depict or describe sexual conduct in a “patently offensive” way, and, taken as a whole, lack serious literary, artistic, political, or scientific value.
28. Banzhaf v. FCC, 405 F.2d 1082, 1100–01 (D.C. Cir. 1968). Television “may reasonably be thought [to have a] greater . . . impact [than] the written word. . . . Written messages are not communicated unless they are read, and reading requires an affirmative act. Broadcast messages, in contrast, are ‘in the air.’ In an age of omnipresent radio, there scarcely breathes a citizen who does not know some part of a leading cigarette jingle by heart. Similarly, an ordinary habitual television watcher can avoid these commercials only by frequently leaving the room, changing the channel, or doing some other such affirmative act. It is difficult to calculate the subliminal impact of this pervasive propaganda, which may be heard even if not listened to, but it may reasonably be thought greater than the impact of the written word.” See also CBS v. Democratic Nat’l Comm., 412 U.S. 94, 94–131 (1973). The Court considers “. . . the reality that in a very real sense listeners and viewers constitute a captive audience.” In holding that CBS was not required to air political advertisements critical of the Nixon administration based on the Fairness Doctrine, the Court also expresses concern over the possibility that time allotted for editorial advertising may be monopolized by a certain partisan message.
29. United States v. Alvarez, 567 U.S. 709 (2012). The Court indicates that certain knowing or reckless falsehoods may still be subjected to content-based regulation without violating the Constitution. At the same time, even in the defamation context, “falsity alone may not suffice to bring the speech outside the First Amendment. The statement must be a knowing or reckless falsehood.” Id. at 719.
30. Unsworth v. Musk, Case No. 2:18-cv-08048, 2019 WL 4543110, at *8 (C.D. Cal. May 10, 2019).
31. In recent cases involving cable hosts Rachel Maddow and Tucker Carlson, courts found that the talk show formats of their programs weighed against taking literally the statements made. One commentator has noted with some concern that “the more hosts ratchet up the level of rhetoric on their shows and cultivate reputations for bloviation, the more likely they are to successfully defend against defamation lawsuits.” Clay Calvert, Privileging Opinion, Denigrating Discourse: How the Law of Defamation Incentivizes News Talk-Show Hyperbole, 2020 Pepp. L. Rev. 51 (2020), available at https://digitalcommons.pepperdine.edu/plr/vol2020/iss1.Without delving into specific defamation-related issues in those cases, they are not precedents for the regulatory inaction, nor do they suggest that encouraging “bloviation” serves the public interest.
32. Nareissa L. Smith, Consumer Protection in the Marketplace of Ideas: A Proposal to Extend the News Distortion Doctrine to Cable Television News Programs, 40 T. Marshall L. Rev. 223, 264 (2015).
33. United States v. Alvarez, 567 U.S. 709, 727 (2012).