Last week, the full FCC issued a decision upholding the license renewal grant of a Pacifica-owned radio station in New York. A listener was complaining that the station broadcast favorable statements about an individual who had shot a police officer. The FCC first noted that the listener had not provided details of the statement, but further stated that the FCC is not allowed to censor the content selected by broadcasters to air on their stations. Specifically, the FCC said: “A licensee has broad discretion — based on its right to free speech7 — to choose, in good faith, the programming it believes serves the needs and interests of its community of license.” The FCC is bound by the First Amendment to not judge the subject-matter content of what broadcasters broadcast. Instead, it regulates structurally, in a content-neutral manner through rules like the multiple ownership requirements, to avoid second-guessing the decisions of broadcasters as to what is said on the air.

The interplay between the First Amendment and FCC rules has been the seen in the handling of many issues by the FCC. We’ve written about it in the context of the abolition of the Fairness Doctrine, and when the FCC in 2014 officially abolished the last vestige of that doctrine – the Zapple Doctrine. We’ve also written (here and here) about that in connection with calls for the FCC to ban attack ads which can sometimes make over-the-top claims about political candidates – the truth or falsity of which broadcasters are sometimes required to determine when the attacked candidate challenges those ads and threatens to sue the station that is running them. Why doesn’t the FCC make those determinations? Because we don’t want the government deciding what can and cannot be run on the air. There are of course libel laws that can be used to crack down on false statements – even those in political ads – but standards for finding liability against public officials and other public figures are set high to block those laws from being used to suppress valuable debate on the issues (see our article here ).

We’ve recently heard much about the need to crack down on “fake news.” There have even been calls for Congress or the FCC to hold hearings about potentially doing something to combat these fallacious stories that may be having an impact on our political process, and are certainly having an impact on some people’s perception of reality (like when fake news brings guns to a local DC pizza restaurant that is quite familiar to many communications lawyers). But having the government put into the position of trying to decide, in the first instance, what is true and what is not is a recipe for government overreach – and also one which is almost impossible to enforce. Practically speaking, how would the government decide what is true or false? When courts are called on to decide in libel and defamation cases, trials can last weeks, with all sorts of witnesses trying to put claims in context. Any government agency trying to make such determinations, to ensure fundamental fairness, would have to go through a similar exercise, and by then the story is already out in the world and, in today’s world, potentially read by millions.

So does that mean that nothing can be done? The communications tools in today’s world are incredible – allowing content to flow from innumerable sources to millions of people in a moment. Just as the FCC and other government agencies have relied on the “marketplace of ideas” to come to a conclusion through robust debate as to veracity of political claims that are made, the press and the public generally can use the same modern communications tools to fight back against fake news – and can use the libel and defamations laws, as necessary to put some teeth in the fight. Voluntary efforts by private companies (e.g. Facebook) are also to be encouraged. But putting the government in the position of determining the truth of political speech of any kind just invites too much risk of partisan subjectivity invading broadcast and other media decisions.

As in the Pacifica case decided last week, keeping the government out of subjective judgements on broadcast content may mean that some things we don’t like are broadcast. But better that some things that we can criticize get aired, then risking not having the right to criticize at all.