Opinion: When I was an FCC lawyer, we managed frequencies — not speech

Jimmy Kimmel Photo courtesy of ABC The Federal Communications Commission once a neutral referee is being recast as an arbiter of free speech in its warning to ABC In doing so it has threatened one of the most of basic pillars of American democracy the right to free expression FCC Chair Brendan Carr s threat over comments on Jimmy Kimmel Live is not merely regulatory overreach It is a direct assault on the First Amendment If leadership representatives can dictate what broadcasters must say or worse what they cannot say then the very notion of a free press collapses Confession up front I am a lawyer More precisely I was once an FCC lawyer legal assistant to former FCC Chair Dean Burch a Republican and former campaign manager for Sen Barry Goldwater Later I served as attorney-adviser to Dick Wiley another Republican who first served as FCC general counsel and then as FCC chair For much of its history the FCC was careful to draw boundaries around its power Yes there were debates sometimes fierce over the meaning of the citizens interest convenience and necessity the legal standard embedded in the Communications Act of The agency s mandate was technical and structural preventing interference among competing radio and television services licensing spectrum fairly and ensuring that the residents benefited from orderly communications Beyond that the FCC was to stay out of the content business It was never the ruling body s role to decide what the citizens should or should not hear Until now In the mid- th century the Fairness Doctrine required broadcasters to cover issues of residents importance and to present contrasting viewpoints That agenda was upheld by the Supreme Court in Red Lion Broadcasting v FCC which reasoned that because spectrum was scarce ruling body oversight was necessary to ensure a diversity of voices But the doctrine was invariably controversial Critics argued that it placed regime bureaucrats in the position of policing ideas And in under President Ronald Reagan the FCC itself repealed the Fairness Doctrine concluding that the rule was both unnecessary and a threat to free speech From that moment on there was bipartisan agreement that while broadcasters carried obligations to serve the populace interest the executive had no business dictating content That restraint held for decades Even as cable television the internet and streaming services reshaped the media landscape the principle endured Governing body could regulate the structure of communications but not the substance of speech The FCC was never meant to be a Ministry of Truth It was meant to be a guardian of the airwaves ensuring fair access technical integrity and competition That mission has now been undermined Disney s decision to end talk-show host Jimmy Kimmel s suspension and return him to his ABC broadcast slot on Tuesday night was welcome but it does not offer any reassurance about what the Trump administration might do next There is no reason to think that the FCC will now remember the lesson that guided it for decades The leadership should manage frequencies not ideas And in the present day with that principle under threat the question before us is stark and urgent Will we defend free speech or will we stand by while the very institution designed to protect communications becomes the instrument that censors them John Eger is a professor emeritus in the School of Journalism and Media Studies at San Diego State University Previously he was a legal assistant to FCC Chairman Dean Burch telecommunications adviser to President Gerald R Ford and senior vice president of CBS He lives in La Jolla