The Federal Communications Commission recently opened public comment on the renewal of the broadcast license for WTXF-TV, a Philadelphia Fox affiliate—better known as Fox 29. Normally such a renewal would be a routine and hum-drum affair without public comment. However, this unusual move is being undertaken thanks to a petition from The Media and Democracy Project, which is asking the FCC to punish the station due to its affiliation with Fox News and controversy about news coverage questioning the legitimacy of the 2020 election.
This attempt to use government regulators to punish the exercise of First Amendment rights is disturbing, short-sighted, and an affront to the people of Philadelphia, the very birthplace of our Constitution.
One of the essential aspects of being a free people is the freedom of the press. It is not surprising that the First Amendment in the Bill of Rights explicitly protects Americans, and the press that serves them, from being silenced by the government. However, without a culture that values and defends these freedoms, the First Amendment becomes little more than ink on some old paper.
The fact that supposedly pro-democracy activists are seeking to weaponize the government to punish people they disagree with, and the fact that the FCC has decided to open the issue to public comment, demonstrates just how fragile our cherished freedoms are. What’s even more unusual in this case, is that the FCC hasn’t even announced how long it will be receiving comments—a procedural omission that lacks transparency. Add in the fact that the complaint is over merely one single hour of programming each week, the Fox News Sunday program carried by Fox 29. It is hard to interpret this move as anything but an attempt to dissuade other broadcast media from airing views with which The Media and Democracy Project, or anyone else able to raise a fuss, disagrees. What’s worse, failing to renew Fox 29’s license would also deprive Philadelphians of the Eagles’ Sunday games.
Beyond being fundamentally anti-American, this attempt to weaponize a regulatory agency to silence the press is extremely short-sighted. Today there is a Democrat president and a Democrat head of the FCC. Eventually there will be a Republican president and a Republican head of the FCC.
Up until now, FCC heads of either party have been explicit that the FCC does not have the authority to revoke a license based on the editorial content of the station. In response to calls by then-President Donald Trump to censor media that he disagreed with, the former Republican head of the FCC, Ajit Pai, stated in 2017 that “under the law, the FCC does not have the authority to revoke a license of a broadcast station based on the content…the FCC under my leadership will stand for the First Amendment.” The current head of the FCC, Democrat Jessica Rosenworcel, has stated that licensing renewals do “not involve the government making editorial decisions about content. Doing so would be an affront to our First Amendment tradition.”
If this bipartisan consensus on regulatory neutrality is lost, there will be nothing to stop future presidents, of either party, from weaponizing the FCC to punish critics and incentivize favorable press coverage. The Media and Democracy Project may be displeased with Fox, but attempting to take out that displeasure via the government is opening a Pandora’s Box that assures only future strife and the further breakdown of the pro-free speech norms that are at the heart of our republic.
Ultimately, the assumption upon which this complaint rests is perhaps the most insulting and worrisome aspect of this entire ordeal. Complaining that Fox 29 aired falsehoods, and therefore must be punished by the government, is really saying that Philadelphians, viewers in the Delaware Valley, South Jersey and Delaware are too ignorant to look at the evidence and decide for themselves what they think is true and what is false and need guidance from “wise” bureaucrats who obviously know better.
It is a simple fact of life that well-intentioned people will disagree about what is true and what is false. Rational people can look at the same evidence and come to different conclusions. There are two ways to deal with this disagreement: we can either learn to live together despite our disagreements, or we can attempt to force those who disagree with us to be silent. History is full of attempts at the latter option and none of them have ended well. The First Amendment is America’s declaration that we have learned from this history of violence over deep disagreements and have chosen a different course.
So far, the FCC has withstood attempts by both sides of the political spectrum to punish “the other side,” but the fact that it has opened public comments on what should be a routine license renewal is worrisome.
However, people across the political spectrum who value our hard-won liberties, but especially those in the Philadelphia area, can use this as an opportunity to remind the FCC by commenting on its website that Americans still value free speech, don’t want to further inflame political tensions by turning it into a regulatory cudgel, and that we are more than capable of deciding for ourselves which news station to watch.
America is unique in the extent to which free speech and the press are protected from government censorship. It is only by continuing to be vigilant in defending these hard-won freedoms that we and our descendants can continue to enjoy and make use of them. At the end of the day, Philadelphians care about being home to the Constitution and the watching the Eagles win. The Media and Democracy Project is attacking both.
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Casey Mattox is an attorney specializing in the First Amendment and Vice President of Legal and Judicial Strategy at Americans for Prosperity.