Why Trump Can’t Actually Kick the Networks Off the Air

But his threat to take licenses from TV networks could run afoul of free speech protections.

President Donald Trump meets with former Secretary of State Henry Kissinger at the White House, Oct. 10, 2017.Evan Vucci/AP

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President Donald Trump threatened on Wednesday to revoke the licenses of TV networks such as NBC and CNN whom he accuses of promulgating fake and unfair stories about him. The threat, in the form of a tweet, does not appear well-researched, as it’s virtually impossible for Trump to use the federal government to take licenses from networks he disagrees with. But First Amendment advocates caution that what looks like an empty threat could violate free-speech protections.

Were Trump to try to follow through on his threat, it’s unclear how he might proceed. The Federal Communications Commission (FCC) is in charge of regulating communications via TV, radio, and other media. The FCC is an independent federal agency whose members are appointed to five-year terms, and the current commissioners are unlikely to carry out the president’s war with the media: The FCC’s chairman, Agit Pai, is known for having a pro-corporate agenda, not one of sinking networks by kicking them off the air. Glen Robinson, who served as an FCC commissioner in the 1970s, says he doesn’t think Pai “would be stupid enough to act on Trump’s temper tantrum.”

If Trump somehow convinced the commissioners to act on his political vendetta, it’s not obvious how they would do it. As Politico reported, the FCC does not license networks, as Trump implies. Instead, it grants eight-year licenses to local stations. Some stations are owned by Comcast, the parent company of NBC, but much of NBC is run through local affiliates owned by other companies. 

Should the FCC decide to retaliate against every local license-holder that broadcasts NBC or another network the president is feuding with, it would run up against its own processes. The FCC allows local competitors and residents to contest license renewal applications, and the grounds for denying a renewal are narrow, requiring that the station violate FCC rules. “Comcast knows full well that the FCC will never, ever, deny its license renewal applications,” Andrew Jay Schwartzman, an expert in telecommunications law at Georgetown University Law Center, told CNN.

Still, civil liberties advocates see the president’s threats—however difficult to carry out—as a chilling attack on free speech. Jameel Jaffer, founding director of the Knight First Amendment Institute at Columbia University, responded on Twitter that the president does not need to execute his threat in order to have violated the First Amendment.

As Jaffer tweeted, there is Supreme Court precedent to suggest that the government does not need to go so far as to revoke licenses to violate First Amendment free speech protections against coercion. It’s unclear where that line is—just how credible a threat must be before the courts would get involved. But the chance that Trump is flouting the Constitution may be greater than the risk that he can actually follow through on his threat.

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Truth #1: The chaos is the point.

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SIX TRUTHS

Reclaiming power from those who abuse it often starts with telling the truth. And in "This Is How Authoritarians Get Defeated," MoJo's Monika Bauerlein unpacks six truths to remember during the homestretch of an election where democracy, truth, and decency are on the line.

Truth #1: The chaos is the point.

Truth #2: Team Reality is bigger than it seems.

Truth #3: Facebook owns this.

Truth #4: When we go to work, we're in the fight.

Truth #5: It's about minority rule.

Truth #6: The only thing that can save us is…us.

Please take a moment to see how all these truths add up, because what happens in the weeks and months ahead will reverberate for at least a generation and we better be prepared.

And if you think journalism like Mother Jones'—that calls it like it is, that will never acquiesce to power, that looks where others don't—can help guide us through this historic, high-stakes moment, and you're able to right now, please help us reach our $350,000 goal by October 31 with a donation today. It's all hands on deck for democracy.

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