Licensing the Press: A Bad Idea Whose Time Has Come Again?

Yesterday, the President tweeted:

He then followed up with this:

It is true that the U.S. Supreme Court has long upheld the awarding or withholding of broadcasting licenses by the Federal Communications Commission (FCC). In 1968, Richard Nixon thought the networks were hostile to his bid for the presidency. After his narrow victory, the Nixon administration contrived a plan to indirectly sanction the speech of the networks, as I noted in my Cato Policy Analysis on the Fairness Doctrine:

In December, after the [1968] election, Clay T. Whitehead, the head of the White House Office of Telecommunications Policy, delivered a speech in Indianapolis proposing changes in the Communications Act of 1934. When their licenses were up for renewal, local stations would be required to demonstrate that they were “substantially attuned to the needs and interests of the community” and had offered a reasonable opportunity for the “presentation of conflicting views on controversial issues.” Local station managers and network officials would be held responsible for “all programming, including the programs that come from the network.” Those who did not correct imbalances or bias in network political coverage would be “held fully accountable at license renewal time.” The policy would have bite. If a station could not demonstrate meaningful service to all elements of its community, the license should be taken away by the FCC. Along with that threat came two offers: the license period for stations would be extended, and challenges to license renewal would become harder to sustain.

The Nixon administration argued that the government should make the network news monopoly offer various viewpoints. They invoked that now defunct Fairness Doctrine, which required a balance of views on public issues from broadcast license-holders. The media struck back:

A Washington Post editorial captures the spirit of the harsh response that met Whitehead’s speech: “the administration is endangering not simply the independence of network news organizations, but the fundamental liberties of the citizens of this country as well.”…Robert G. Fichtenberg, chairman of the freedom of information committee of the American Society of Newspaper Editors, called the proposed licensing standards “one of the most ominous attacks yet on the people’s right to a free flow of information and views.”

The Nixon administration began to back off. In March 1973, they introduced legislation that would extend the term of a broadcasting license from three to five years. The other proposals mentioned at the start of Nixon’s first term “were not included in the proposed legislation nor were they mentioned again by the administration.”

More recently, in 2004, seventeen U.S. Senators bullied the Sinclair Broadcasting Group out of showing a documentary harshly critical of presidential candidate John Kerry. In this case, the media lost: Sinclair backed down for fear of its affiliates losing their licenses. The Kerry documentary went unseen.

President Trump’s tweets promise unconstitutional attacks on freedom of speech and of the press. Not for the first time, the tweets show illiberal passions dominating a man whose job demands rationality, discipline, and a respect for fundamental law. Absent those, President Trump might consider Richard Nixon’s failure to bring the press to heel. Perhaps prudence might serve as a substitute for absent virtues.