The FCC, broadcast licenses, and the press the framers feared

The Guardian reports that a coalition of prominent conservative organizations has petitioned the Federal Communications Commission to deny renewal of broadcast licenses held by ABC stations, citing allegations of political, racial, and sexual bias and of sympathy toward a foreign power. I take no position on the truth of those charges. A mind disposed as mine is must ask a prior question: what does it mean for a government commission to hold the power to silence a press organ because the government — or a faction seeking the government's ear — dislikes the organ's editorial posture?

The First Amendment is blunt. Congress shall make no law abridging the freedom of speech or of the press. That language was not decorative. We placed it first among the explicit guarantees because we understood, from hard experience, that the most natural use of state power is to quiet criticism of itself. A licensing regime that conditions the right to broadcast on government approval is, at minimum, a mechanism that must be watched with unrelenting suspicion — for the same lever that can be pulled against one faction's enemies can be pulled against another's.

I am aware that broadcast spectrum is a finite public resource and that the Congress and the courts of a later age constructed a regulatory framework around that scarcity. I did not live to see it, and I will not pretend to judge its technical necessity. What I will say, as inference drawn from first principles, is this: the moment a licensing authority becomes the instrument by which one political faction punishes a press organ for ideological deviation, the scarcity rationale has become a pretext. The constitutional question is no longer about spectrum. It is about whether the executive branch — through an appointed commission — can operate as a censor.

Federalist No. 51 rests on a single structural insight: ambition must be made to counteract ambition, and no branch should be trusted with unchecked power over another institution that the people depend on to check the government itself. A free press is not a branch of government, but it is indispensable to the operation of all the others. When the executive can threaten a broadcaster's license because the broadcaster's reporting displeases the administration or its allies, the press is no longer free in any meaningful sense — it is merely tolerated on sufferance, which is the very condition the Amendment was written to prevent.

I note, too, the faction problem. The petitioners are described by The Guardian as prominent conservative organizations. Let every reader substitute, in their mind, a coalition of prominent progressive organizations filing the same petition against a broadcaster whose editorial line they deplore. The principle does not change; the power does not become safer because one approves of those who wield it today. Faction is precisely the danger: a majority faction that captures a regulatory body can, through that body, narrow the range of acceptable speech until only its own voice fills the square. The cure I argued for in Federalist No. 10 — extending the sphere, multiplying competing interests — does not work if the government can pick winners and losers in the marketplace of expression.

The structural question, then, is this: does a proceeding in which a government commission evaluates the political content of a broadcaster's news coverage, as a condition of continued licensure, strengthen or weaken the balance of free government? I submit the answer is plain. Whatever the FCC's formal mandate, any exercise of that mandate that turns on editorial viewpoint is an encroachment the First Amendment was designed to forbid. The proper remedy for a press organ one believes to be biased is competition, criticism, and the persuasion of audiences — not a petition to a government body to take away the organ's right to speak.