Trusty Defends FCC's Actions Against Broadcasters at Free Speech Gala
FCC Commissioner Olivia Trusty told attendees at a free speech event Wednesday that the agency has “an obligation” to regulate broadcasters based on their content and compared broadcaster expression to a person standing on a frozen lake that could crack at any time. “You can’t always see how thick the ice is beneath your feet or whether it will hold if you take that next step,” Trusty said in remarks at the Media Institute’s Free Speech America Gala. “Yes, the First Amendment still applies -- both by its own terms, and as confirmed by Section 326 of the Communications Act,” she said. “But in broadcasting, content-based regulation that would be unthinkable in other contexts is indeed permitted under longstanding doctrine.”
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“Many have predicted the Supreme Court would eventually erase this distinction," Trusty added. "But that day has not yet come. Until it does, the Commission has an obligation to apply the law” as it stands. FCC Chairman Brendan Carr has repeatedly made similar arguments to defend the agency's enforcement proceedings and investigations related to broadcast content.
Broadcasters should exercise “careful judgment” when navigating the frozen lake of their free speech rights, Trusty said. “At what point are you still on solid ground, enforcing clear statutory requirements? At what point do the cracks appear, signaling that the ice might not hold?”
Trusty also said a recent U.S. Supreme Court decision on jawboning may not “map neatly onto this terrain.” Several public interest groups and free speech organizations have suggested that Carr’s actions and comments toward CBS and ABC could be considered illegal jawboning under SCOTUS’ ruling in National Rifle Association v. Vullo (see 2503100073). “That case addressed a government official who sought to use state power to deter disfavored speech,” Trusty said Wednesday. “But how that principle applies in a space where the FCC can directly regulate content under current precedent is a more difficult question.”
In addition, she said the FCC should lead on the international stage, universal service programs should “embrace the most effective technologies to close the digital divide,” and the agency should celebrate innovation.