The FCC is Unconstitutional
Conservatives, led by the Trump regime, suddenly believe that there is a legitimate role for the national government to regulate speech in the media
It really should not surprise me how many conservatives who were angry when their side was being canceled, suspended, or blocked on social media and television networks are suddenly all too gleeful about the suspension of Jimmy Kimmel from his television show on ABC or other progressives being fired around the country for saying outright disgusting things about or even just simple criticisms of Charlie Kirk in the wake of his assassination. Yes, plenty of these people are hypocrites, a great example is MSNBC’s Democratic propagandist Chris Hayes:
But if you were mad about Tucker Carlson’s cancelation and are now celebrating Jimmy Kimmel’s cancelation, you are equally as hypocritical. You’re either against cancel culture, or you’re not; you either support freedom of speech, or you don’t. Tit-for-tat may be satisfying, but it’s not principled. Saying wrong, even cruel or disgusting things about a person who was just brutally murdered is free speech. False information should be widely called out, and maybe ABC should fire its employees if they use ABC’s network to propagate false information. However, when the Federal Communications Commission, an agency of the national government, tells ABC that they have to do something about Jimmy Kimmel or the FCC will do something about ABC “the hard way,” then that is government censorship.
The counter-argument from conservatives that we hear is that the FCC has a legitimate role in overseeing networks who have a government license to use the “public spectrum,” such as ABC. This argument would make sense to me coming from the progressive left, but I can’t begin to understand how the conservative right can make this argument with a straight face. There is no legitimate role for the national government to regulate the “public spectrum,” there is no such thing as a “public spectrum” if you believe in private property rights, and the United States Constitution does not designate a “public spectrum” anywhere in the document.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Tenth Amendment
As the U.S. Constitution does not designate public airwaves or a public spectrum, and does not give the U.S. government the power to regulate public airwaves or a public spectrum, the U.S. government has no constitutional authority to designate or regulate public airwaves or a public spectrum as the Tenth Amendment makes clear. If the argument then is, “Well, the framers of the Constitution couldn’t foresee airwaves in the 18th-century,” I’ll grant you that, but it doesn’t change anything. Conservatives don’t get to simply ignore the Constitution when it’s convenient for them anymore than progressives do. If conservatives want to designate and regulate public airwaves—though I’m not sure why people who claim to support free markets would want to do that in the first place—then they will need an amendment to the Constitution to make it legal.
All of that said, even if there were constitutional authority for the FCC to regulate the public spectrum, it would not change the fact that ABC only moved to suspend Jimmy Kimmel after the FCC threatened them. Saying that ABC can handle Jimmy Kimmel over what he said “the easy way” or “we can do it the hard way” is still a threat from the national government over speech and has nothing to do with the free market whether you think they have a legitimate role in doing so or not. It’s no different from Congress threatening social media companies like Facebook and Twitter with new regulations if they didn’t change their moderation policies themselves to crackdown on people questioning the official narrative on COVID, or the 2020 election, or January 6th rioters.
You either style yourself a defender of free speech, which includes vile and false speech from your political opponents, or you can support the government threatening networks, colleges, businesses, and individuals over what they or their employees have said. The two positions are mutually exclusive and now that they’re in power, too many conservatives have dropped their “free speech” masks to go after their political opponents.