President Donald Trump‘s threat to in response to a report he called “fake news” has First Amendment hawks lining up. But could he really do it?
Not without a lot of effort, say experts.
“Anyone can file a challenge with the FCC to the renewal of a broadcast license,” said Glen Robinson, a former FCC commissioner who teaches at the University of Virginia School of Law. “Trump is anyone. However, legally that’s all he can do since he doesn’t have any authority to direct or control the FCC’s actions.”
But even though it’s possible, it’s “wildly improbable” to go anywhere based on a claim of “fake news,” he added.
Trump lashed out at the network in a series of tweets Wednesday morning after NBC aired and published a report online stating he wanted to increase the US nuclear arsenal.
“Pure fiction, made up to demean,” Trump’s tweet read.
Then came the threat: “With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License? Bad for country!”
Later when asked by reporters in the White House’s Oval Office about the NBC story and his Twitter threats, he lashed out again at the media but stopped short of calling for limits on a free press.
“It’s frankly disgusting the way the press is able to write whatever they want to write,” Trump said. “And people should look into it.”
By that evening, he was back to tweeting and doubled down on his earlier threat.
This is just the latest attack against the media from Trump, who has regularly complained about news coverage he believes is unfairly critical by labeling the stories, news outlets and even reporters as “fake news.” But his latest remarks go further by suggesting his administration would punish news organizations for publishing or airing stories he doesn’t agree with.
While FCC Chairman Ajit Pai hasn’t answered requests for comment on Trump’s remarks, the two Democratic commissioners at the agency have voiced their concern that such an action would violate the First Amendment, which protects free speech.
Indeed, the biggest thing standing in the way of Trump making good on this threat is the First Amendment.
“The First Amendment’s right of free speech protects NBC and anyone else who wants to speak in this country,” said Peter Tannenwald, a Washington, DC-based communications lawyer. “While intentional news distortion raises some public interest issues, disagreement with speech does not.”
The FCC receives complaints all the time from consumers accusing stations of airing inaccurate or one-sided news reports or comments or covering stories inadequately or overly dramatizing events they cover. But the agency’s authority to respond to these complaints is narrow since it has to be careful not to censor or infringe on the First Amendment rights of the press, Tannenwald explained.
The agency can take a stand against broadcasters that intentionally distort the news. But in order to investigate and possibly take action, it needs documented evidence that a licensee or its management engaged in the intentional falsification of the news. That’s a pretty high bar. And absent any smoking gun, the commission isn’t likely to take action.
“[FCC Chairman] Ajit Pai may owe his job to Trump, but unlike Trump, he’s not a moron,” Robinson said. “He won’t sacrifice his career by trying to make a legal case out of Trump’s temper tantrum. “
It’s not unheard of for a president to try to muzzle the press. Both John F. Kennedy and Lyndon Johnson tried to discourage news organizations from reporting on what was really happening in Vietnam. And Richard Nixon, at the height of the Watergate investigation, went so far as to secretly challenge the renewal of broadcast licenses held by the Washington Post.
But Robinson doubts that Trump’s tweets are meant to scare executives at NBC or Comcast. They’re more about trying to persuade the public that these news agencies can’t be trusted.
“The real audience for Trump’s tweet is some set of the general public who might be persuaded to change their source of news,” Robinson said. “It’s just another shot in his ongoing war against the mainstream media.”