President Trump’s actual assault on the First Amendment

11 October 2017 marked a red-letter day in the Trump presidency: the day after which there could be no doubt that the President is wholly unaware of how the First Amendment works, and indeed how media works in the USA. President Trump first tweeted that he would like to do away with NBC’s license to operate a network (to be absolutely clear, a thing that does not exist), and then stated that “It is frankly disgusting the press is able to write whatever it wants to write.”

Alas, Mr. President, that is the nation you signed up to lead.

The FCC grants licenses based upon the financial and physical ability to construct and operate a transmitter based upon a commercial or non-commercial basis. That’s the license the FCC grants. There is no license required to operate a network, which essentially acts as a giant production company. For that matter, there is no licensing of media generally in this country, and certainly not by the federal government, due to the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Regardless of your thoughts on the doctrine of incorporation, whereby most of the Bill of Rights is imputed to act against state governments as well, it is clear that under the First Amendment, Congress, and thus, the federal government, has no authority to abridge the freedom of speech or of the press, with certain very limited exceptions (actual obscenity among them). I personally hew to a functional interpretation of the press, i.e., anyone who has the ability to get published is the press. This interpretation is becoming more popular in recent times, because it preserves the distinction between freedom of speech and freedom of the press, and because it reflects a historical reality: in the colonial era, the British crown controlled the rights of publication by barring the operation of unlicensed presses in the colonies.

So, why does the FCC get to license broadcasters? Simply this: the broadcast spectrum is limited, crosses state lines, and has been determined to be public property. This is why our FM and AM bands are restricted as they are, why there are limited broadcast spectrum options for cell phones over two competing nation-wide standards, and why all TV stations had to switch to digital broadcast in 2009. Importantly, this is also why the FCC doesn’t regulate cable in the same way (because cable crosses over wires, and is not broadcast over the airwaves).

Fittingly, thanks the First Amendment, it is not illegal for the President to make these outrageous statements, nor do they rise to an impeachable offense (unless the House of Representatives chooses to make it so). I would go so far as to say that if the President issued an executive order purporting to yank a broadcaster’s license, that would not be an impeachable offense. The President simply lacks the authority to exert any executive power in this matter. Although the President’s statements may lead to a chilling effect (which seems quite unlikely based upon the response so far today), that in itself is not actionable.

Chalk up this tempest in a teacup to a combination of ego, ignorance, and guile.