A bipartisan group of former FCC commissioners wants to take away Brendan Carr’s biggest weapon against journalism

Brendan Carr shouldn’t be able to do what he’s been doing at the Federal Communications Commission. That’s the argument put forth by seven former FCC commissioners — five of them Republicans — after seeing Carr dig up a rarely used old policy to twist the media toward Donald Trump’s political interests.

The policy in question goes by the name of “news distortion,” and these commissioners say Carr is using it unconstitutionally:

The Supreme Court has “many times held, in many contexts, that it is no job for government to decide what counts as the right balance of private expression — to ‘un-bias’ what it thinks biased, rather than to leave such judgments to speakers and their audiences.” Nor does government have any “power to restrict expression because of its message, its ideas, its subject matter, or its content.” Even false speech is protected by the First Amendment. TheCommunications Act similarly denies “the Commission the power of censorship” or the ability to “interfere with the right of free speech.” Yet the current FCC Chairman has asserted the power todo precisely what the Supreme Court and Congress have forbidden, and what former FCC general counsel declared the agency could not do: “act as a self-appointed, free-roving arbiter of truth in journalism.”

To achieve this, Chairman Carr has invoked the news distortion policy and the public interest obligations of broadcasters. We ask the Commission to rescind the news distortion policy and affirm that the agency cannot police broadcaster licensees’ speech for bias or the falsity of the speech they carry, except under the exceedingly narrow circumstances of the broadcast hoax rule.

Carr has been more than happy to use the idea of news distortion as a cudgel against Trump critics, as The Washington Post reminds us:

After Carr assumed the FCC chairmanship in January, he reopened a months-old complaint from the Center for American Rights, a conservative legal organization, filed in October 2024 against CBS stations carrying the “60 Minutes” interview with Democratic presidential candidate Kamala Harris, claiming it had been misleadingly edited. Carr also reopened a complaint against ABC over presidential debate moderation. FCC staff had previously dismissed both cases under the prior administration.

Trump sued CBS News over the Harris interview and settled out of court for $16 million as parent company Paramount sought regulatory approval for its deal to merge with David Ellison’s firm Skydance. The FCC approved the $8 billion deal in July.

Carr publicly accused NBC and parent company Comcast of news distortion over its coverage of Kilmar Abrego García’s wrongful deportation from the United States. Carr accused Abrego García of being a gang member, which he has denied and the administration has not been able to substantiate. “Comcast knows that federal law requires its licensed operations to serve the public interest,” he posted on X. “News distortion doesn’t cut it.”

In September, Carr cited the policy when he threatened ABC and parent company Walt Disney Co. over late-night host Jimmy Kimmel’s comments about the killing of right-wing influencer Charlie Kirk. “We have a rule on the book that interprets the public interest standard that says news distortion is prohibited,” he said on a podcast before adding, “We can do this the easy way or the hard way.” Later that day, television affiliate owners Nexstar and Sinclair said they would preempt “Jimmy Kimmel Live!” before ABC pulled Kimmel off the air; he returned one week later.

So what is the news distortion policy? For an ironic look, check out this 2019 paper by Joel Timmer of Texas Christian University, which lays out the history. Timmer presciently cites the news distortion policy — which dates to 1949, a somewhat different time for media — as a tool a pro-Trump FCC might use to attack its perceived enemies in the press. It’s not a regulation; it’s a general policy that evolved “through the adjudicatory process in decisions resolving challenges to broadcasters’ licenses.” Citing earlier work by Chad Raphael, he lays out what that evolved definition of “news distortion” entails:

First, there must be an accusation of deliberate intent to distort the news or mislead the audience. Audience complaints of inaccuracy or disagreement with the broadcaster’s legitimate editorial choices are not enough to trigger FCC scrutiny.

Second, the accusation must be supported by evidence extrinsic to the broadcast itself. Otherwise, the FCC will not inquire into “a dispute as to the truth of the event (i.e., a claim that the true facts of the incident are different from those presented)…

Third, this evidence must show that the distortion was initiated by or known to the licensee or to “its principals, top management or news management.”

Fourth, distortion must involve a significant event, rather than an incidental part of the news. The FCC will not inquire into “inaccurate embellishments concerning peripheral aspects [of reports or] attempts at window dressing which concerned the manner of presenting the news [when] the essential facts of the news stories to which these presentational devices related were…broadcast in an accurate manner.”

In short, “The real criterion is whether the public is deceived about a matter of significance.”

So how has this policy been enforced? Over its first 70-plus years, it was only invoked in eight cases. In three of those cases, the FCC simply wrote a letter of reprimand. In two others, the “distortion” combined with multiple other infractions led the FCC to make a station’s next license renewal have a shorter term than usual, so it would be up for approval again more quickly. In the other three, distortion was only one of multiple infractions that led to a station losing its license.

What were those three cases? Two were the fault of 1970s shock jocks. A Miami station decided to promote its newest disc jockey by falsely claiming that he’d had a bad trip, had gone missing, and was now wandering the streets of Miami, disoriented. They “reported” made-up updates about his disappearance in the middle of their real newscasts, leading area residents to lead real search efforts. Another came when a Tucson radio station decided to do something similar, staging a “kidnapping” of a DJ and, again, reporting it as real news for days on end. The third involved the owner of several Indiana radio stations who “had directed news personnel to mention only positive news regarding senate candidates he favored, and to report only negative news about one of his favored candidate’s opponents.”

In all three cases, the “news distortion” finding was only a small part of a longer list of offenses that led to the license non-renewal. (These WKRP-esque stations also seem somewhat different from 60 Minutes? But maybe that’s just me.)

The irony I mentioned earlier? In his paper, Timmer was pretty convinced that “news distortion” claims were so “very difficult [to prove] and uncommon” that they were unlikely to be of any use by even a Trump-run FCC.

As the foregoing analysis establishes, the FCC’s ability to take action against news organizations that allegedly provide fake news is extremely limited…Even then, false news stories on broadcast media are provided a significant degree of protection by the First Amendment, in that their falsity alone cannot be the basis for sanctioning them. Instead, the false statements must be combined with some other element or elements — such as knowledge, intent or harm — that narrows the reach of actions against false speech. Both the news distortion policy and the broadcast hoax rule contain such narrowing elements. While these narrowing elements make it likely the rules would survive constitutional challenge, they also significantly limit the applicability of those rules to more extreme situations…

Trump has the First Amendment right to respond to speech he does not like. At the same time, however, the First Amendment prevents him from using the power of the government to punish speech based solely on his dislike of it, or his belief that it’s “fake.” As Justice Alito observed in Alvarez, “Allowing the state to proscribe false statements…opens the door for the state to use its power for political ends.” Thus, an allegation that a news story is “fake” is not sufficient for the FCC to take action against it. Both the news distortion policy and broadcast hoax rule require several elements, in addition to falsity, to be present for the government to sanction allegedly false news reports, thereby limiting the potential for the government to abuse its power in this area.

Ah, to live in the world Timmer sketches out here — one where FCC actions originate in commissioner votes instead of podcast appearances; where news companies can be expected to pursue their due process rights rather than write a convenient check; where courts could be expected to step in before First Amendment harm is done. Sounds nice.