Anti–First Amendment Merger Enforcement at the FCC

Last month, a Taxpayers Protection Alliance (TPA) blog post warned that the Federal Communications Commission (FCC)’s merger-approval powers have become a weapon for deployment against the Trump administration’s political foes. “A government possessed of the power to micromanage the economic lives of Americans is a government whose reach cannot be contained merely to economic matters,” the post reads. “Vast and arbitrary economic powers — when entrusted to the discretion of fallible men — are liable to be abused.”

The FCC’s subsequent statements concerning the now-approved acquisition of Paramount by Skydance affirm explicitly that the merging parties, to gain regulatory approval, must adhere to opinions that enjoy the approbation of the White House.

This FCC’s antipathy for liberal media outlets, and their parent companies, stems from political disagreements. If Paramount did not own CBS — a prominent antagonist of President Trump — its business operations are unlikely to have produced the regulatory tumult that just occurred. This fact, in and of itself, ought to concern advocates of free speech. News outlets hostile to a sitting president should not be subjected to harsher regulatory scrutiny than the president’s friends.

TPA’s July post discussed the FCC’s conditioning of merger approvals on companies’ excision of diversity, equity, and inclusion (DEI) from their corporate practices. “The judiciary has made clear that, absent harassment or other such illegal behavior, the First Amendment protects corporate expressions of progressive views concerning race and race relations,” TPA wrote. “Whatever the Trump administration’s moral judgment of DEI, it has no legitimate interest in squashing the ideology — and is, indeed, constitutionally barred from the attempt.”

The leveraging of economic powers to manage speech internal to a corporation does violence enough to the First Amendment. But, as they are fond of saying on one popular political podcast, it’s worse than that.

Besides the agreeing to end its DEI activities, “Skydance has made written commitments to ensure that the new company’s programming embodies a diversity of viewpoints from across the political and ideological spectrum,” FCC chairman Brendan Carr stated. “Skydance will also adopt measures that can root out the bias that has undermined trust in the national news media,” Carr also said.

The federal government has no rightful interest in fostering a diversity of journalistic opinions. Indeed, it has no rightful either in promoting or discouraging any kind of the journalistic expression at all. Outrageous and dishonest journalistic bias ought to be condemned, but it is no business of the federal government to enforce such condemnations in law. As the Supreme Court noted in Moody v. NetChoice (2024), “it is no job for government to decide what counts as the right balance of private expression — to ‘un-bias’ what it thinks biased, rather than to leave such judgments to speakers and their audiences.” Those questions, the Constitution says, are left to be litigated and decided by private citizens and civil society.

One need not approve of CBS’s editorial policy — nor regard it with anything besides contempt — to object to the federal government declaring the viewpoints of disfavored journalistic enterprises verboten.

Carr grounds his censorious and censorial position in the requirement that broadcasters, to receive government-managed broadcast licenses, must adhere to “the public interest,” as the Communications Act of 1934 states. However, this begs the question. According to Carr, the adherence to the public interest consists of adherence to his particular notion of unbiased journalism. Whether the First Amendment allows for such an interpretation is — at the least — quite dubious.

Conservatives once understood the First Amendment objections to the marriage of un-biasing the media and the public interest. President Ronald Reagan, in his efforts to end the FCC’s Fairness Doctrine, put it thus: “[T]he obvious intent of the First Amendment” was “to promote vigorous public debate and a diversity of viewpoints in the public forum as a whole, not in any particular medium, let alone in any particular journalistic outlet.” Conservatives would do well to recover their lost understanding.

Irrespective of any one broadcaster’s merits and demerits, it seems clear that the public interest is at violent odds with any extension of state control over a free media. “Our liberty depends on the freedom of the press, and that cannot be limited without being lost,” Thomas Jefferson wrote. That holds true even in cases in which the press makes poor use of its freedom.