STEVE INSKEEP, HOST:
People watching all this include Robert Corn-Revere. He once was a lawyer at the FCC and is now at FIRE, the Foundation for Individual Rights and Expression, which, as you might guess, is a free speech organization. Good morning, sir.
ROBERT CORN-REVERE: Good morning, Steve.
INSKEEP: I want to ask about the statements of Chairman Carr. As we heard, he said in 2019 the FCC does not have a mandate to regulate speech in the public interest. He is now determined to do that. Which time was he right?
CORN-REVERE: (Laughter) Well, Chairman Carr used to be right. But he has decided to pledge allegiance to something besides the Constitution, it seems.
INSKEEP: Although he will say, has in fact publicly said, the FCC is always political, is always influencing people, is always making political decisions. I'm just being partisan like my predecessors.
CORN-REVERE: That's just transparent nonsense. The FCC for its entire existence has tried to be very sensitive to the idea that it is governed by the First Amendment and the Communications Act, which specifically prohibits the federal agency from exercising the power of censorship. There have been times when the FCC has gone wrong, and it has been held accountable by the courts. But it has never operated as a roving commission, as Chairman Carr is currently trying to do.
INSKEEP: I guess we should note it does sometimes - not censor precisely, but punish, penalize, fine, threaten people for obscenity, particularly during daylight hours. There is some FCC role in speech, right?
CORN-REVERE: Well, there is some, but again, governed by the courts. And when the FCC has gone too far or has imprecisely defined what it's trying to regulate, it has been called to heel by the courts and said that it must comply with both the Administrative Procedure Act and the First Amendment.
INSKEEP: Oh, interesting. Administrative Procedure Act. That means that the government can't make arbitrary regulatory decisions. They have to do things that make sense. Would we presume that that means that they cannot arbitrarily yank the license of a broadcast station because they don't like a late-night joke?
CORN-REVERE: (Laughter) That's exactly right. Plus, you'll hear the president imprecisely talking about yanking the licenses of networks. But networks aren't licensed by the FCC; individual stations are. What this indicates is that when you see the content of late-night shows that displease the president or now Chairman Carr, that they believe they can simply pressure those institutions, those media organizations into making programming changes.
INSKEEP: I'd like to know if we've done something that has fundamentally changed the nature of the FCC. I mean, I've learned some of the history 'cause I had to work in this industry. It was created in the 1930s. Congress seemed to understand it's very dangerous to have this agency, government agency, regulating broadcasters, regulating people who engage in speech. And so they created this bipartisan commission. And it was supposed to be independent and insulated from politics, and it went about its business in the way that it did. Sometimes there were abuses, but that was the business model.
The Trump administration now says there is no independence. There's no such thing as independence. The president completely controls all independent agencies, including this one. But we're still going to use the immense power, the dangerous power. Is there something fundamentally wrong there in the way the administration is approaching this agency?
CORN-REVERE: Well, yes, because this isn't how the agency was designed. It was understood from the beginning. Even before the Communications Act was adopted in 1934, the Radio Act of 1927 included the same kinds of safeguards. First, it was specifically designed to be bipartisan and, as you mentioned, independent. But also, there's a specific provision written into what is now Section 326 of the Communications Act which specifically deprives the agency of the power of censorship.
INSKEEP: In what way? What do you mean deprives the agency of the power of censorship?
CORN-REVERE: It simply says nothing in this act shall give the FCC the power to impose conditions on broadcasters or engage in censorship.
INSKEEP: Could Brendan Carr, Chairman Carr, nevertheless say, I have a loud megaphone, I'm going to use it? I will threaten your license. And if it gets right down to it, I might yank your license and tell you to sue me.
CORN-REVERE: Well, that's precisely what he's doing, although he doesn't put in the final line about sue me. He just assumes that he has the ability simply to apply that pressure. And the FCC is using that in its regulatory decisions over things like mergers, slow rolling...
INSKEEP: Last couple of seconds. I'm sorry to interrupt, but I realize we need to get this in. Are you bothered that corporations are backing down in the face of this pressure?
CORN-REVERE: Well, yes, a spine is a terrible thing to waste. And it would be good to see, as in the case of law firms and Harvard University pushing back on these kinds of unconstitutional actions.
INSKEEP: Robert Corn-Revere with FIRE. Thanks so much.
CORN-REVERE: Thank you. Transcript provided by NPR, Copyright NPR.
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