Free Speech

Jacob Sullum | From the February/March 2026 issue

In 1964, journalist Fred J. Cook published Barry Goldwater: Extremist of the Right, a 186-page attack on the Republican candidate in that year's presidential election. As economist Thomas W. Hazlett notes in his history of broadcast regulation, the Democratic National Committee (DNC) "arranged for Grove Press to publish the book," which portrayed Goldwater as "so extreme that he cuts a positively ridiculous figure." The general public bought 44,000 copies. The DNC bought 72,000.

Conservative criticism of Cook's book resulted in a landmark Supreme Court decision that upheld federal regulation of broadcast speech—a power that several presidents had used to target their political opponents. Although the Reagan administration repudiated that illiberal tradition, President Donald Trump has revived it, as illustrated by the 2025 suspension of Jimmy Kimmel, the ongoing transformation of CBS News, and Trump's habitual threats against TV stations that air news coverage he views as unfair or unbalanced.

The Supreme Court blessed the legal rationale for such meddling in a case that started with a right-wing evangelist's reaction to Cook's critique of Goldwater. A few weeks after Goldwater lost to President Lyndon B. Johnson in a historic landslide, Billy James Hargis railed against Cook during his Christian Crusade radio show.

The man who "wrote the book to smear and destroy Barry Goldwater," Hargis said, was "a professional mudslinger" who had defended accused Soviet spy Alger Hiss in The Nation. Hargis called that magazine "one of the most scurrilous publications of the left," saying it had "championed many communist causes over many years." Hargis also noted that Cook "was fired from the New York World-Telegram after he made a false charge publicly on television against an unnamed official of the New York City government."

Cook asked WGCB, a Pennsylvania radio station that had aired the show, for an opportunity to rebut the preacher's criticism. The station's conservative owner, the Rev. John M. Norris, was amenable, provided Cook paid for the airtime at the same rate that Hargis had been charged. That was not good enough for Cook, who complained to the Federal Communications Commission (FCC), which agreed that he had a right to free airtime.

Norris refused to comply with the FCC's order, which he argued was inconsistent with the First Amendment. Not so, the U.S. Supreme Court unanimously ruled in the 1969 case Red Lion Broadcasting v. FCC. The Court described the FCC's nascent policy regarding "personal attacks" like Hargis' comments about Cook as an outgrowth of the long-established "Fairness Doctrine," which required broadcasters to cover public issues in an even-handed manner. Both policies, it said, were firmly grounded in the agency's statutory responsibility to ensure that broadcasters serve "the public interest."

The justices thought it was plainly absurd to suggest that regulating the content of radio and TV programming impinged on freedom of speech or freedom of the press. "Although broadcasting is clearly a medium affected by a First Amendment interest, differences in the characteristics of new media justify differences in the First Amendment standards applied to them," Justice Byron White wrote in the Court's opinion. "Because of the scarcity of radio frequencies, the Government is permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium."

That "scarcity" rationale for regulating broadcast content, which never made much sense, has not aged well. And the FCC itself abandoned the Fairness Doctrine in 1987 after concluding that it had a chilling effect on speech—a danger that the Supreme Court had deemed too speculative to consider in Red Lion.

Trump nevertheless thinks broadcasters have a legal obligation to be fair. "When 97 percent of the stories [about me] are bad," he told reporters in September, "it's no longer free speech." When TV networks "take a great story" and "make it bad," he added, "I think that's really illegal." Because broadcasters are "getting free airwaves from the United States government," Trump thinks, they should lose their licenses if their programming is biased against him and his supporters.

In November, an ABC News reporter's unwelcome questions at a White House press conference provoked another threat to yank broadcast licenses. "I think the license should be taken away from ABC," Trump said, "because your news is so fake and it's so wrong."

Brendan Carr, an avowed First Amendment champion whom Trump appointed to run the FCC, sees correcting anti-Trump bias as an important part of his job. That understanding of the FCC's mission explains why Carr seriously entertained the possibility that CBS committed "broadcast news distortion" by editing a 60 Minutes interview with then–Vice President Kamala Harris in a way that made her seem slightly more cogent. It explains why Carr bragged about requiring changes to journalistic practices at CBS as a condition for approving Skydance Media's acquisition of Paramount, the network's parent company. Carr's conception of "the public interest" was also at the root of his most flagrant attempt to exert control over broadcast content: the regulatory threats that preceded ABC's suspension of Jimmy Kimmel Live! in September.

With some notable exceptions, Republicans have applauded Carr's campaign against left-leaning TV programming. But judging from the history of federal meddling in this area, they may ultimately regret the precedents he is setting. Instead of building weapons that could one day be deployed against them, conservatives should question the puzzling legal status of broadcast speech, which allows government interference that would be clearly unconstitutional in any other medium.

As White told the story in Red Lion, government licensing of broadcasters was manifestly necessary. Prior to the Radio Act of 1927, he said, "the allocation of frequencies was left entirely to the private sector, and the result was chaos. It quickly became apparent that broadcast frequencies constituted a scarce resource whose use could be regulated and rationalized only by the Government. Without government control, the medium would be of little use because of the cacaphony [sic] of competing voices, none of which could be clearly and predictably heard."

There was something fishy about this explanation from the beginning, since all resources—including the ink and paper used to produce books and newspapers, the materials that comprise printing presses, and the land occupied by publishers—are scarce in the economic sense. The solution to that sort of scarcity is legally enforceable property rights, and something similar could have avoided the "chaos" that White described.

"The fact that only a finite amount of spectrum use was allowed for traditional broadcasting, without more, did not require intrusive regulation," John W. Berresford, then an attorney with the FCC's Media Bureau, noted in a 2005 research paper. "Merely an allocation system, defining and awarding exclusive rights to use certain frequencies, would have sufficed to 'choose from among the many who apply.' Like any allocation system, this one would need clearly defined rights, a police force, and a dispute resolution system for allegations of interference, unauthorized operations, and other misconduct."

Congress nevertheless seized upon the scarcity rationale to charge the Federal Radio Commission, the FCC's predecessor, with awarding and renewing broadcast licenses based on its assessment of "public interest, convenience, or necessity." And beginning in the late 1920s, the commission held that "public interest requires ample play for the free and fair competition of opposing views," a principle it said applied to "all discussions of issues of importance to the public."

That policy, White explained, imposed "a twofold duty" on broadcasters: They "must give adequate coverage to public issues," and "coverage must be fair in that it accurately reflects the opposing views." Both "must be done at the broadcaster's own expense if sponsorship is unavailable."

On its face, the Fairness Doctrine seemed inconsistent with........

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