ITIF Disputes Center for American Rights on News Distortion
The Center for American Rights is wrong to argue that the FCC is obligated to enforce its rules even when they're based on judicial precedents that are now widely seen as poorly decided, the Information Technology and Innovation Foundation said Tuesday. CAR argued last month that the agency is bound by the U.S. Supreme Court’s 1969 Red Lion Broadcasting v. FCC decision, in which the court ruled that broadcasters have reduced First Amendment protections because of spectrum scarcity.
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The FCC, whose news distortion policy is based on that decision, “need not operate at the outer limit of what old precedents permit, and it should not do so when the merits of those precedents are grievously wrong and ripe to be overturned,” wrote Joe Kane, ITIF's director of broadband and spectrum policy, in an ex parte filing in docket 25-322. “On CAR’s reading, the FCC would be obligated to maintain every policy that survives judicial review.” That interpretation is incorrect, and the agency even “long ago repealed” the rule that SCOTUS upheld in Red Lion, he said. “The Commission should follow the Constitution of its own volition, not violate the First Amendment until a court tells it to stop.”
The FCC "should continue to follow existing case law and leave it to the U.S. Supreme Court to overturn its own precedent," said CAR President Daniel Suhr in an email. "Current case law validates the Commission's role providing a meaningful review of licensee compliance with the public interest standard."