The Fox Factor: Should Government Regulate News Networks?

AP Photo/Mary Altaffer

At this point, I’m not shocked that folks on the left are floating the idea of using the government to attack Fox News and other right-leaning media outlets. In fact, I’m more surprised that they have not actually made a full court press to make this happen years ago.

But the idea could start gaining more traction in the public square. MSNBC legal analyst Andrew Weismann suggested that the government should take action against Fox News for “promulgating lies” regarding the outcome of the 2020 presidential election. During a Friday appearance on “Morning Joe,” he discussed the matter with co-host Eugene Robinson.

Robinson asked:

A lot of people in media who were appalled at what Fox did in defaming Dominion and who were rooting for Fox to lose at the same time, who worried that an adverse ruling to Fox if they’ve gone to trial, might have an impact on libel law, might have an impact on the governing, Supreme Court decisions Sullivan v. The New York Times, that gives wide latitude to reputable news organizations, and that is kind of potentially a threat. How do we break this cycle, and how should the media be thinking about this?

Weismann responded, arguing that taking action against Fox News would not create a “slippery slope” situation that would result in a violation of the freedom of press. He said:

The key word that you used in Eugene is the word “reputable.” So if I were at a reputable news organization, I don’t know that I’d be particularly worried about what I saw at the National Enquirer, which was completely colluding with the Trump campaign, or what we saw at Fox News. If you talk to any reputable journalist, whether it’s in television, whether it’s in print media, this is so far beyond the pale in terms of what news is supposed to be. You’re just not colluding with one political campaign. So I don’t think that there’s a real sort of, you know, slippery slope here where we see liability here.”

Weismann continued, recalling how the Federal Elections Commission (FEC) punished the National Enquirer over the matter with former President Donald Trump and model Karen McDougal. He said:

“They’re trying to get the damages to their client. And so that’s where you really think the FEC —which did impose a small fine on the National Enquirer — needs to step in. And it can’t be a small fine. You really need to be thinking about, okay, what is the business model for the National Enquirer? What is the business model for Fox News and the next media company that’s going to pretend to be giving news but is actually going to be promulgating lies? Is there going to be some regulatory damage that’s going to deter that? So we don’t have a repetition because it’s really easy to just simply avoid denigrating a company so you won’t get sued but still promulgate a big lie. And so you need to have the government step in to have some kind of regulation of that kind of conduct.”

This is not the first time someone like Weismann has suggested using the government to punish media outlets that do not align with progressive orthodoxy. In March, NBC News published a report detailing how some called on the Federal Communications Commission (FCC) to take action against Fox News. However, the author acknowledged that such an outcome is unlikely “due to the FCC’s limited power and changing nature over time.”

The article explained:

The FCC’s authority lies in granting broadcast licenses, which allow private companies to use public airwaves under certain criteria, including “character qualifications.” However, this power is limited to broadcast stations and does not extend to cable TV channels like Fox News, which do not use public airwaves for transmission.

Nevertheless, some media advocacy groups and individuals have called for the FCC to investigate Murdoch’s other businesses, including its broadcast affiliates, to determine if false claims about the election or other topics, such as the Covid pandemic, have been systematically spread.

Reed Hundt, who headed the FCC under President Bill Clinton, posted a tweet insisting that the agency “had a responsibility to encourage a culture of both free speech and truth in media.”

“But the Fox story reveals them to be an either/or choice for that firm at least. Shouldn’t the FCC at least comment?” Hundt said.

During a phone call with NBC News, Hundt alleged that the evidence that surfaced in the Dominion case is sufficient for the FCC and the Federal Trade Commission (FTC) to investigate Fox News.

“That’s the question of the investigation: Is it systematic across all of the coverage?” he said.

Hundt then suggested that the FCC could punish the news outlet if it was found to have disseminated misinformation.

“Those licenses are supposed to be held only if you serve the public interest,” he said. “Intentionally lying to people is not consistent with the public interest.”

Andrew Schwartzman, a senior counselor at the Benton Institute for Broadband and Society, told NBC via email that the FCC has historically not aggressively enforced the character policy and has “twisted itself into knots weakening and not enforcing” it.

“In essence, just about the only thing that is actionable is a felony conviction of a principal who is involved in the day to day management of a station (‘broadcast-related misconduct’),” Schwartzman’s email to NBC News continued. “The only other capital offense at the FCC is lying to a federal agency in a material way.”

Right now, the prospect of authoritarian leftists using the state to target news outlets that express viewpoints contrary to progressive ideology might not seem like much of a pressing threat. But it would be unwise to assume that this isn’t an idea these people would love to make reality.

It is also worth noting that this has nothing to do with misinformation or disinformation. They don’t care about news outlets making fallacious claims. Otherwise, they would complain about activist media organizations like CNN, MSNBC, and others who do the same without fear of retribution. This is about silencing political opposition using the power of the government, nothing more, nothing less.

The principle of free speech is a cornerstone of the U.S. Constitution, and the FCC has a responsibility to uphold this principle while also promoting truth in the media. Taking action against Fox News would be a shameless violation of the First Amendment rights to freedom of speech and freedom of the press. This could set a precedent that may have implications for other media outlets and their ability to express their opinions, even if those opinions are controversial or misleading.

If the FCC were to take action against Fox News for spreading false claims, it could be seen as government intervention in the editorial content of a media outlet. This could set a dangerous precedent, as it may be perceived as a form of censorship or control over the press. It could raise questions about the government’s role in regulating the content of media organizations, and the potential chilling effect on freedom of expression and the ability of media outlets to report news and express their opinions without fear of government repercussions.

You can bet your bottom dollar that this effort would not stop with Fox News. It would spread to other conservative and libertarian media outlets that don’t push the leftist agenda.

Furthermore, determining what constitutes “false” or “misleading” information can be subjective and complex, and can involve interpretation and analysis of facts, opinions, and perspectives. We already know that the authoritarian left has been defining any viewpoint that contradicts their ideology as “misleading” — while completely ignoring factual inaccuracies and blatant lies coming from news outlets they like.

Allowing these people to act against a media organization based on allegations of spreading false information could open the door to potential abuse and bias in determining what is considered “truthful” or “acceptable” speech, leading to concerns about censorship and infringement on the freedom of the press. Of course, this is precisely the outcome the authoritarian left would want.

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