With the unprecedented and rapidly evolving coronavirus crisis, it is crucial that the public receive accurate information. President Donald Trump has been documented to have provided inaccurate or misleading information about the disease and its effects. A group aimed at promoting internet and press freedom, Free Press, asserts that broadcast news outlets and on-air personalities have a responsibility to inform the public of the potential inaccuracy of Trump’s statements when covering or discussing them. Otherwise, broadcasters could be responsible for the harm that results to those who believe and act on those statements. As an example, Free Press cites the death of an Arizona man who saw and believed TV news coverage in which Trump characterized hydroxychloroquine as a potentially effective treatment. The man apparently ingested a similar-sounding ingredient as a result, chloroquine phosphate, and died.
In an emergency petition filed with the Federal Communications Commission on March 26, Free Press urged the FCC to investigate the spread of false information about the coronavirus. Free Press documented a number of other false statements by Trump, which it alleges were widely broadcast by the press. The result of Free Press’ request was perhaps dismaying, but considering the First Amendment values involved here, not surprising. Even had the commission taken up the issue, its authority to act would be limited to broadcast media.
Free Press alleged that broadcasters who cover or repeat statements such as those Trump made about the efficacy of hydroxychloroquine, without also including disclaimers that the statements may not be accurate, could be in violation of the FCC’s broadcast hoax rule. Free Press further urged the FCC to make a formal recommendation that “broadcasters prominently disclose when information they air is false or scientifically suspect,” even if the broadcaster is simply reporting on the president’s statements.
The FCC quickly dismissed the Free Press petition, stating that it does not act as the “arbiter of truth in journalism.” The FCC observed that broadcasters are covering a rapidly evolving health crisis, one in which new medical information is “difficult to corroborate or refute in real time.” Indeed, the FCC expressed the view that by providing live coverage of presidential briefings on the crisis, broadcasters could be serving the public interest.
While the FCC declined to involve itself here, the Free Press petition does raise the issue of whether the FCC can take action against broadcasters that provide inaccurate or misleading information related to the coronavirus pandemic. The FCC does have two potential bases on which to take action against inaccurate news reports: its broadcast hoax rule and its news distortion policy. Should the FCC seek to enforce these rules to help stop the spread of misinformation about the coronavirus? Or might it do more harm than good?
Broadcast Hoax Rule
The broadcast hoax rule was enacted by the FCC in 1992 after a number of incidents in which TV and radio stations pulled pranks on their audiences that caused panic among some members of the public or resulted in law enforcement responding to the false reports. Examples included a radio station airing a warning that the United States was under nuclear attack, a radio station falsely reporting that one of its on-air hosts had been shot in the head in the station parking lot, and a morning radio show on which the hosts orchestrated a false murder confession from a caller to the show. Without the rule, the FCC had no good options for addressing these situations. The broadcast hoax rule gave the FCC the ability to fine stations that pulled hoaxes like these.
The broadcast hoax rule has four prongs. First, a station must air false information concerning a crime or catastrophe. Second, the station must know that the information is false. Third, it must be foreseeable that broadcasting the false information will cause substantial public harm. Fourth, the broadcast of the false information must in fact cause immediate and substantial public harm. All four prongs must be met for the rule to be violated.
News Distortion Policy
In contrast to the broadcast hoax rule, the FCC’s news distortion policy does not allow the commission to fine stations that violate the policy. Rather, the policy is applied only at a TV or radio station’s license renewal, which occurs for stations every eight years. At that time, the FCC can consider whether a station has violated the policy in determining whether the station should have its license renewed. (In that respect, it may be a future FCC that looks back at what stations did during the Trump administration and coronavirus period.)
The news distortion policy likewise has four components. First, the station must deliberately intend to distort the news or mislead the audience. It is not enough that station simply aired inaccurate information. Second, there must be evidence, in addition to the news story itself, that the station intended to mislead the audience. Third, station ownership or management must initiate the distortion or know about it. It is not enough if a reporter acting on his or her own was responsible for the distortion. Fourth, the public must be deceived about a matter of some significance, rather than just an incidental part of the news.
The First Amendment
Both the broadcast hoax rule and the news distortion policy have several requirements which significantly narrow their applicability, in that much more is required for their violation than the airing of a false or inaccurate news story. First Amendment doctrine requires that government regulation of speech, such as the broadcast hoax rule or news distortion policy, be narrowly focused on just those types of speech that cause the harm the government is seeking to prevent. The additional elements contained in each of the rules are designed to do just that. It is significant that the FCC has very rarely had the occasion to consider the application of either rule, as their violation has seldom been alleged, and even more rarely has the commission found a broadcaster to have violated them.
Were the rules applicable to broader sets of circumstances, they would likely violate the First Amendment, which provides the highest level of protection to political speech, and even provides significant protection to false speech. Perhaps no other country in the world provides such expansive protection to free speech as the United States. Political speech is provided this protection to allow the public to engage in “uninhibited, robust, and wide-open debate” on public issues. Significantly, this protection is not dependent on whether a speaker’s claims are true or accurate.
Recognizing that falsehoods provide little or no benefit to society in and of themselves, the U.S. Supreme Court has concluded that some false statements are “inevitable” if we are to have open and vigorous debates on issues of public importance. These “inevitable” false statements might come from those who purposefully lie to persuade others to their point, or from those who attempt to spin the facts to support their cause. They might also come from those who mistakenly, and innocently, believe their statements to be accurate.
Punishing the press for covering false statements in these situations could limit and harm public debate on important issues due to a likely “chilling effect.” That is, the press might avoid covering statements on issues of public concern, even though some or all might be true, out of fear that some may turn out not be true and the outlet would risk prosecution or punishment. The news media, in effect, might censor itself.
Allowing the press to escape punishment by establishing the truth of these statements does not eliminate this chilling effect. News organizations may still be concerned about the difficulty of proving all aspects of their stories true in court, or even just about the difficulties and expense of having to do so.
That is not the end of the matter, though. Rather than let false statements simply circulate unchecked, we depend on the marketplace of ideas to help us sort the true from the false. We allow both true ideas and false ideas to compete in this marketplace. In fact, the First Amendment is grounded on the theory “that the best test of truth is the power of the thought to get itself accepted in the competition of the market.” Under this view, the best weapon against false speech is speech that is true. Counterspeech, accurate information which counters the false, is preferred as a remedy to government action.
In its denial of the Free Press petition, the FCC echoed this view. The commission concluded:
“[T]he antidote to the alleged harms raised by Free Press is — ironically enough — a free press. The rapid and comprehensive coverage of the present pandemic, free from burdensome disclaimers, agency investigation, or other government oversight, advances the public interest in maximizing information flow, while facilitating the vetting of statements by public officials via the ordinary journalistic process.”
In other words, let the marketplace of ideas operate without government intervention. The goals are the same—getting to the truth — but the means to obtain it are markedly different (governmental regulation versus expansive press freedoms and counterspeech).
Fox News and CNN Out of Reach Anyway
Even if the FCC were to enforce the broadcast hoax rule or news distortion policy, this would only have limited effectiveness in countering the spread of false information. That’s because both rules apply only to broadcasters, which means TV and radio stations. Significantly, the two rules do not apply to cable networks like Fox News or CNN. Nor do they apply to newspapers or websites. This stems from the fact that broadcasters are licensed by the FCC to use a scarce public resource: the electromagnetic spectrum, which is used for all forms of wireless communication. Additionally, broadcasters so licensed are tasked with a government mandate to “serve the public interest.” Because of this, courts have allowed greater government regulation of broadcast speech than of speech in other forms of media. The FCC’s authority over cable television content is much more limited, and the commission does not regulate or oversee newspaper or website content.
So targeting broadcasters would address just a portion of the flow of misinformation, meaning FCC enforcement of the rules would not be all that effective in reducing the harms stemming from the misinformation. Even then, any such action is complicated by the fact that the FCC does not have authority over broadcast networks themselves, such as ABC, CBS, FOX, or NBC, but rather only over the individual stations around the country that air each broadcast network’s programming. Any action then, would need to be taken against each individual station airing false information. While not a perfect solution, reliance on the marketplace of ideas is better than having the FCC investigate and punish stations reporting on misinformation about the coronavirus crisis.