How much authority and leeway should the government––specifically, the Federal Communications Commission (FCC)––possess to decide whether news is accurate or distorted and, in turn, to punish broadcasters for the latter?
If one starts from the eyes-wide-open dual premises that government officials sometimes act selfishly to serve their own interests (not necessarily those of the public) and that individuals temporarily vested with power in a democratic system should not be arbiters of truth and falsity, then the answer is very little. If one also factors in the free-enterprise assumption that marketplace forces––viewers’ preferences on what to watch––matter as much as government judgments and weighs broadcasters’ First Amendment rights of free expression and editorial autonomy, the answer is zero.
The question isn’t hypothetical; it underlies the FCC’s investigation into whether CBS’s editing of a 60 Minutes interview with then-presidential candidate Kamala Harris violated the Commission’s rule barring broadcast news distortion. The FCC explains that:
News distortion “must involve a significant event and not merely a minor or incidental aspect of the news report.” In weighing the constitutionality of the policy, courts have recognized that the policy “makes a crucial distinction between deliberate distortion and mere inaccuracy or difference of opinion.” As a result, broadcasters are only subject to enforcement if it can be proven that they have deliberately distorted a factual news report. (emphasis in original).
As I’ve described, President Donald Trump is suing CBS over the Harris interview while the FCC, under Brendan Carr’s leadership (Trump’s choice as chairman), reinstated a news-distortion investigation into CBS’s editing that was earlier dismissed by Carr’s Democratic predecessor, Jessica Rosenworcel. The FCC’s investigation was spurred by a complaint filed by the Center for American Rights (CAR), with CAR President Daniel Suhr asserting that “[w]hen broadcasters manipulate interviews and distort reality, it undermines democracy itself. The FCC must act swiftly to restore public confidence in our news media.” That assumes, of course, one believes it’s the government’s obligation to shore up public confidence in broadcast journalism by punishing editorial decisions the government deems distorted.
CAR’s complaint pivots on the fact that Harris is shown giving “two completely different answers”––one on a Face the Nation segment and another the next night on 60 Minutes––to the same question posed by Bill Whitaker. CBS explained that both answers came in response to the same question, and the network simply used “a different portion” and “a longer section of her answer” on Face the Nation. CBS added that “[t]he portion of her answer on 60 Minutes was more succinct, which allows time for other subjects in a wide ranging 21-minute-long segment.” In brief, Harris’s words weren’t distorted at all; CBS exercised its news judgment about which parts of her answer to air, given the programs’ different formats.
In February, Carr extended the issue beyond that of an internal FCC investigation into how the interview was edited by “opening a docket to seek [public] comment on” it. In remarks filed with the FCC last month, the Foundation for Individual Rights and Expression (FIRE) bluntly called the public-docket opening “a political stunt” creating “an illegitimate show trial.” Citing a prior FCC ruling, FIRE argued that the Commission “has never asserted the authority to police news editing and has rightly observed that it would result in a ‘quagmire’ even to try.” FIRE also nailed the larger problem, observing that the public comment “proceeding is designed to exert maximum political leverage on the CBS network at a time when President Trump is engaged in frivolous litigation against it over the same 60 Minutes broadcast.”
The Reporters Committee for Freedom of the Press emphasized in its FCC filing that “there is zero evidence of distortion,” with both the raw video footage and interview transcript that CBS gave the FCC confirming:
that all CBS did was use different portions of answers to the same interview questions in the two clips. News organizations can and do edit news content every day, including for length and clarity. That cannot be and never has been a violation of the news distortion policy.
A statement filed by eighteen organizations, including the Center for Democracy and Technology, PEN America, and the Society of Professional Journalists, stresses that the FCC’s news-distortion “precedent requires extrinsic evidence of deliberate and knowing distortion beyond the broadcast itself, such as a bribe or evidence of an order from management to fabricate news,” which is lacking here. The statement adds that “the transcript and raw footage prove that CBS had not doctored Harris’s interview, and instead engaged in the standard practice of editing long interviews to fit within much shorter time allotments.”
Editing is for editors, not the government. The FCC should immediately halt this politically partisan charade “to restore public confidence” in the Commission, to borrow CAR’s phrase.
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