Is a broadcast license revocation a form of censorship?

Posted by Mitchell - October 2, 2023 (entry 757)

The August 2023 edition of this very newsletter featured an essay on broadcast license challenges, past and present, and recounting some of Chicago Media Action's experiences in the license challenge front over the years. The essay was motivated in part by a petition to deny filed in July 2023 against a FOX Network affiliate, WTXF in Philadelphia.

As a follow-up action, I co-wrote an op-ed on a similar topic -- that of making the case for denying the license to WTXF -- which we submitted to Project Censored. Project Censored to their credit published the op-ed on their website and resyndicated the essay, which led to further coverage on other left media outlets, including the LA Progressive, Counterpunch, and Common Dreams.

(Around the same time, the state of Oregon and the New York City pension funds also sued Fox over promoting election falsehoods, so there's more fuel being added to the fire.)

In following up on some of the commentary posted in response to the essay, I noticed a peculiar response which I saw more than once and which, I have to admit, I had never heard raised even once in this context, even during the heyday of attention on Chicago Media Action's work on license challenges. The response I found peculiar was that a broadcast license revocation would constitute a form of censorship.

That's what I would like to explore in this newsletter. First, is a broadcast license revocation a form of censorship? And second, why might this response be coming up now when in the decade-and-a-half during Chicago Media Action's participation in its own license challenge, I can recall nobody accusing CMA of being pro-censorship.

Is a broadcast license revocation a form of censorship? Someone asked my co-author Steve Macek that question on Facebook, and Steve's response is worth quoting at length:

It is not censorship to revoke Fox's TV licenses for failure to live up to the public interest requirements the FCC expects of broadcasters. Broadcasting over the airwaves is a privilege, not a right. License holders have to meet certain requirements. The problem is the FCC has very rarely enforced those requirements and regulates the airwaves in the interest of the millionaires and billionaires who own of most the country's TV stations. If I had my druthers we'd take away the licenses of virtually all the commercial TV stations and hand them over to community groups, unions and nonprofits. They couldn't possibly do any worse.

A related matter was also argued at the Supreme Court in a 1943 case involving free speech and broadcast licenses for radio, well before policy on television was crafted. In the ruling on this case, Justice Felix Frankfurter wrote:

The right of free speech does not include, however, the right to use the facilities of radio without a license. The licensing system established by Congress in the Communications Act of 1934 was a proper exercise of its power over commerce. The standard it provided for the licensing of stations was the "public interest, convenience, or necessity". Denial of a station license on that ground, if valid under the Act, is not a denial of free speech.

If a broadcast license revocation isn't a form of censorship, why is there commentary now to that effect? Here I believe we have to tread carefully, since this is still a new charge (new to me at least) and there is still much that is unknown. What I write below on the matter is more speculative and admittedly not terribly well-supported, as yet. I would raise the following four points:

One, maybe this always has been part of the discussion around license challenges and it's simply possible that I never saw it, or I did see it and I forgot. I admit, I'm tempted to dismiss this charge out of hand, but that would be a mistake, especially what we know now about the frailty of human memories. At the same time, I like to think I have a fair degree of confidence around my memories and my work on the issue, and I can proceed under the assumption, though with an appropriate degree of skepticism, that this license-is-pro-censorship charge is indeed new.

Two, we should ask the people who are making the charge why they think that. That's something, I admit, I haven't yet done. And it's quite possible, maybe even likely, that this represents uninformed or poorly-informed thinking on the part of the commenters. It might be a coincidence -- I see some random comments and I see a trend (another cognitive bias to watch for).

Three, this might be an incipient talking point that could be seized by the right-wing in the United States to muddy the discussion on broadcast licenses. Let me hasten to clarify: the comments I've seen and heard on this front were made in left fora (and Facebook). Nor do I know of any commentary by right-wingers who have commented on the Philadelphia license challenge or on any license challenge for that matter (if there is such commentary, please let me know). The right-wing has built its strength through a media echo chamber based on the existing regulatory regime. That regime is now somewhat volatile, perhaps more so than at any point in a century, but it still stands for the time being and must be reckoned with. And as everyone knows, the right-wing media echo chamber can turn on a dime when necessary and still has formidable heft to shape American opinion.

Which leads to my fourth and final point, and arguably the wackiest point I could make: This license challenge against FOX affiliate WTXF might actually work. The charges are clear and indisputable, and there is some legal muscle behind the challenge. Yes, there is a century of history that says that this license challenge will not work, and it's still a strong bet that it won't. But as we all know, we are living in historically unparalleled times, and I don't think we should be limited by precedent. Even if the challenge doesn't rise to the level of a full revocation -- if say it gets to an evidentiary hearing -- I could see the right-wing media echo chamber start to freak out and level charges of censorship and associate any license challenge discussion with censorship for a generation or more. We would do well to immunize ourselves in advance, and I hope this essay represents an advance in that regard.

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