FCC reversal on media 'study' victory for First Amendment but warning, too

The United States Constitution. (ARCHIVES.GOV)

The United States Constitution. (ARCHIVES.GOV)

Once again, the Obama administration attempted to get what it wanted through its often-used strategy of intimidation and executive overreach.

This time, though, the American people responded quickly and forcefully, and sent a powerful message to the White House: No, not this time. Americans stood up and said this unconstitutional power play isn’t going to happen.

Last week I told you about the Obama administration’s latest effort to monitor and limit free speech – the FCC’s effort to study and determine what America “needs” to hear.


This FCC effort, called the “Multi-Market Study of Critical Information Needs,” would have sent FCC monitors into newsrooms around the country, tasked with interviewing station owners, managers, and journalists – asking questions about the station’s “philosophy” and even inquiring about specific editorial decisions.  This represented an unprecedented attack on the freedom of the press.

More On This...

The chilling effect was obvious. The FCC happens to control the broadcast licenses for much of the news you watch, read, and hear. 

How could stations refuse to cooperate? 

How would they react if the FCC disagreed with their editorial choices?

Fortunately, however, the American public is growing increasingly fed up with the administration’s government overreach. Within 48 hours an online petition at the American Center for Law and Justice gained more than 70,000 signatures in opposition, and outrage spread from media outlet to media outlet.

By Friday afternoon, the administration – caught red-handed – backtracked. The FCC issued a statement:

"To be clear, media owners and journalists will no longer be asked to participate in the Columbia, S.C. pilot study. The pilot will not be undertaken until a new study design is final. Any subsequent market studies conducted by the FCC, if determined necessary, will not seek participation from or include questions for media owners, news directors or reporters."

In other words, the study won’t happen, and any future study won’t include monitors in the newsroom.

It’s a victory, to be sure, but I doubt the administration has learned its lesson.

For almost two full years, my colleagues and I at the ACLJ have been battling an IRS that targeted and harassed Tea Party and other conservative groups. The IRS was caught red-handed (like the FCC), and it apologized. It said it ended the targeting scheme.

Yet the IRS is unreformed. It deceived the American public when it said the misconduct was over. In fact it still hasn’t granted recognition to some 501(c)(4)’s, including one group that’s been waiting since 2009.

But that’s not all. Even as the IRS was targeting the Tea Party it was plotting the second phase of censorship, drafting regulations so draconian that they could even limit mention of the president’s name during a political campaign. 

These rules are so oppressive that they’ve united left and right – with the ACLU joining the ACLJ in opposition to the Obama administration censorship agenda.

Throughout this administration, the entire “alphabet soup” of federal agencies has mobilized against the president's perceived political opponents. The FCC wants to target newsrooms, the IRS targets conservatives, the Department of Health and Human Services  targets Christians, and the Department of Justice targets reporters.

It’s a troubling strategy that the Obama administration routinely employs. Here’s the scenario:  First, the administration seeks to take action through constitutional or regulatory overreach. If officials get caught, they apologize. Then, they pull back -- even if it's a partial retreat -- later, when they think no one is looking, they try again.

We’re now past the midpoint of Mr. Obama’s presidency, and his legacy is already emerging. 

First and foremost, of course is the monstrous failure of ObamaCare, a program that is breaking our health care system. Much of the damage can be undone, however, with the right election results in 2014 and 2016.

It will be more difficult to undo the second part of Mr. Obama's legacy: the drafting of the entire federal bureaucracy into one party’s political machine – using its vast scope and power to suppress dissent.  It's a legacy of lawlessness that will have ramifications for years to come.

A blizzard of litigation can help stem the tide, but more fundamental reform may be necessary. Until that reform occurs, Americans will be hard-pressed to trust the good will and impartiality of the very government they fund. It's a government they can no longer trust, led by a president who selfishly puts politics ahead of the American people.

There is hope, of course. There is always hope. Last week's victory teaches us that government bureaucracy can sometimes be forced to retreat.

The journey of a thousand miles – the journey to reclaim our fundamental freedoms – began last week with a single, important step – a victory over the FCC.

Jay Sekulow is Chief Counsel of the American Center for Law and Justice (ACLJ), which focuses on constitutional law. He also serves as a member of President Trump’s legal team.  Follow him on Twitter @JaySekulow.