Republican Olivia Trusty is defending several moves by the Federal Communications Commission that have raised First Amendment concerns among progressives and other critics. “These provisions, and others, are grounded in the statute and decades of precedent,” Trusty writes. She notes the Supreme Court has long upheld the use of the public interest standard to enforce those objectives.
“At the FCC, our regulatory and oversight responsibilities span the media and communications sectors, which means that protecting the First Amendment is paramount to our policy work,” Trusty says. But in a paper for The Medi Institute, she stresses that broadcasting occupies a distinct legal space, where constitutional protections interact with the requirements of the Communications Act in ways that are often misunderstood.
Trusty doesn’t mention any specific steps taken by the FCC, such as this month’s effort to restrict political candidate appearances in non-news programming. Instead, to illustrate the tension between free speech and government regulations, Trusty contrasts broadcast speech with other forms of expression protected by the First Amendment. “When you think about the First Amendment, imagine a cliff,” she writes, describing a boundary that is “clear, uncompromising, and absolute.” But broadcasting, she argues, operates under a different framework. “Instead of walking up to a cliff’s edge, she suggests speech in broadcasting is like walking on a frozen lake.
“At first as you step on it, the surface feels solid,” Trusty says. “But, as you continue to move forward, the ice groans underfoot. Cracks spread. You can’t always see how thick the ice is beneath your feet, or whether it will hold if you take that next step.”
Trusty notes that while the First Amendment still applies to broadcasting, predictions the Supreme Court would erase broadcasting’s distinct treatment have not yet come to pass. “Until it does, the Commission has an obligation to apply the law as it stands,” Trusty says.
In discussing how the FCC should fulfill its public-interest mandate, Trusty argues market-driven outcomes are usually preferable to prescriptive regulation. “When the marketplace, through the choices of individual licensees, advances the public interest, that is the best outcome — for the First Amendment, the Communications Act, and our constitutional republic,” she says. “Most broadcasters take their public interest obligations seriously.”
But technology could play a role in the future, as Trusty sees innovation as central to achieving that balance. “Innovation is not just about faster networks or smarter devices; it is about strengthening the foundations of free speech,” she says. New technologies, Trusty argues, expand opportunities to connect, extend service to hard-to-reach areas, make more efficient use of scarce spectrum, and restore consumer trust.
Trusty ultimately ties innovation and free expression together as mutually reinforcing goals. “Free speech and innovation are not separate stories,” she says. “They are two sides of the same coin.” Free expression, she adds, fuels innovation because ideas must be “tested, debated, and challenged,” while innovation protects free expression by giving people “more ways to speak, to listen, and to be heard.”
The paper is part of The Media Institute’s Madison Project, an effort examining the role of free speech and press in American democracy. Download the paper HERE.