Why the government can’t do much to control the truth about cable TV: NPR

Insurgents loyal to President Donald Trump attempt to break through a police barrier on January 6, 2021 at the Capitol in Washington, DC

Julio Cortez/AP

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Julio Cortez/AP

Insurgents loyal to President Donald Trump attempt to break through a police barrier on January 6, 2021 at the Capitol in Washington, DC

Julio Cortez/AP

If a company makes a false statement in an advertisement, the government has the power to hold that company accountable and not allow consumers to be defrauded.

This is because the Federal Trade Commission regulates truth in advertising.

“When consumers see or hear an advertisement, whether on the Internet, on radio or television, or elsewhere, federal law states that the advertisement must be truthful, not misleading and, where appropriate, supported by evidence. scientists,” boasts the FTC. “The FTC enforces these truth-in-advertising laws, and it enforces the same standards no matter where an ad appears — in newspapers and magazines, online, in the mail, or on billboards or bus.”

But that’s not the case for what we hear on cable news or read on social media (or political ads for that matter). And that was highlighted last week when Fox News’ Tucker Carlson attempted to rewrite history during the January 6, 2021 attack on the Capitol.

Rioters, inspired by former President Donald Trump’s lies about the 2020 presidential election he lost, stormed the Capitol in hopes of trying to prevent the certification ceremony of the Joe Biden victory.

Since then, more than 1,000 people have been arrested and face charges. More than 500 have been convicted so far for their roles that day.

And yet after House Speaker Kevin McCarthy handed over a virtual palette of video footage from that day – part of a deal he struck with members of the party’s right flank to get elected President – Carlson released benign footage from That Day.

“The crowd was huge,” Carlson said. “A small percentage of them were hooligans. They committed vandalism. You’ve seen their pictures over and over again. But the overwhelming majority weren’t. They were peaceful, they were orderly and gentle. This n Were not insurgents. They were tourists.”

It is sorely lacking in context. Many people who participated have been charged with everything from entering a building or restricted area and disorderly conduct to acts of physical violence, robbery and assault or obstruction of ‘law application.

Five people died during or shortly after the riot. It is estimated that more than $2.5 million in damage was caused to the Capitol. And the FBI considers what happened that day an act of domestic terrorism.

Several Republican senators berated Carlson.

Sen. John Thune of South Dakota reiterated that he considers what happened on Jan. 6 “an attack on the Capitol.”

Senator Kevin Cramer of North Dakota said, “Putting it in the same category as an authorized peaceful protest is just a lie.”

Senator Thom Tillis of North Carolina was more blunt. “It’s *** bulls,” he said.

So what can be done to control inaccurate reporting on wired networks?

The answer is not a lot.

The Federal Communications Commission regulates the words that are spoken on the public airwaves – and prohibits the broadcast of “distortions” over them. According to the FCC:

The FCC prohibits the dissemination of false information about a crime or disaster if the broadcaster knows the information is false and will cause significant “public harm” if disseminated.

FCC rules specifically state that “the public harm must begin immediately and cause direct and actual damage to property or the health or safety of the general public, or distract law enforcement or other authorities of public health and safety from their duties”.

He adds :

The FCC is prohibited by law from engaging in censorship or infringing on First Amendment press rights. It is, however, illegal for broadcasters to intentionally distort news, and the FCC may pursue complaints if there is documented evidence of such behavior from persons with direct personal knowledge.

But cable is a different medium. The words and pictures that come through cable are not from public airwaves, broadcast or what someone can get on a TV with an antenna.

FCC regulations apply only to licensed local broadcast outlets that are transmitting over the air. It’s largely because of the way these regulations were developed. Because the first broadcast medium was radio and it was accessible to anyone at any time, public access signals are regulated.

“Unfortunately, the FCC has no jurisdiction over wired networks,” former FCC Chairman Tom Wheeler said. “In fact, he doesn’t even have jurisdiction over networks like CBS and NBC that use the airwaves.”

In other words: the FCC regulates the local stations that carry your local news programs, which are affiliates from CBS, NBC, ABC and Fox. But there’s virtually no regulation on what’s said on cable networks like MSNBC, CNN or, you guessed it, Fox News.

Lawmakers struggle to find an answer

The lack of any control over cable news, allowing episodes like the one Carlson aired, is frustrating to many, including Democratic Senator Ben Ray Luján of New Mexico. He chairs a key subcommittee responsible for overseeing the cable.

“There should be more tools to make sure nonsense like this doesn’t happen,” Luján said. “And just like affiliates on the broadcast side have to get a license that wouldn’t allow it, why are people on the other side within the same company able to do everything while hurting the American people? ?”

Luján says he is exploring his options, including the possibility of holding hearings and seeing if there is more leeway that can be given to regulators.

But it’s probably a stretch.

“The main difficulty comes from our Constitution, particularly the First Amendment, which guarantees freedom of speech and of the press,” said John Vile, a professor at Middle Tennessee State University, who co-edits the Encyclopedia of the First amendment. “This has been interpreted in particular to mean that the government is not the arbiter of opinion. And every time the government has tried to arbitrate opinion, it ends up in trouble.”

So if the established regulatory structures can’t do anything about the cable or the opinions expressed about it, is there a way to hold it accountable?

“I think we see in the Dominion (the case) that there is a remedy in the courts,” Wheeler said. “But if your question is, is there recourse through government regulation? The answer is it’s much more limited.”

Wheeler is referring to a Dominion Voting Systems lawsuit against Fox News. He revealed that Fox News executives and hosts, including Carlson, knew what they were broadcasting were lies about the 2020 presidential election that they did not believe.

But the Dominion case is a $1.6 billion libel case. To win a lawsuit like this, a aggrieved public person or business must show either knowledge of the falsity or a “reckless disregard for the truth”, otherwise known as the standard of “actual malice”.

It’s an intentionally high bar that generally protects the ability to publish criticism – and the like – of public officials. (In some states, private citizens have a lower bar of having to prove “mere negligence” to obtain compensatory damages.)

To take legal action in the first place, however, there has to be a person or business who can show that they are “standing” and have been wronged in some way.

This makes it harder to seek redress in court for something said on cable news that is a general lie or distortion.

The threat of social media and the internet

When it comes to misinformation and disinformation, however, the greatest perceived threat to truth comes from social media and the internet. Therefore the senses. Michael Bennett, D-Colo., and Peter Welch, D-Vt., have proposed a new federal watchdog, the Digital Platform Commission, to try to regulate truth online.

“I believe we cannot accept 20 more years in this country of digital platforms, transforming American life without any oversight or accountability to the American people,” Bennet said, adding, “I wish we had an alternative to the social media algorithms that make the most angry and vitriolic content go viral, distorting our political conversation I would say maybe even destroying our political conversation.

Conservatives have their own issues with social media platforms, feeling they are being unfairly targeted for their ideology. Trump was kicked off Twitter and Facebook after Jan. 6 for violating policies to encourage violence, and many conservatives, including many congressional GOP members, had their tweets flagged for spreading false information during the COVID-19 pandemic.

They see “free speech” as under attack.

“The internet has democratized our political discourse,” former FCC Chairman Ajit Pai said in a 2017 speech. “It has invigorated political debate. And in my view, it can help support our shared cultural engagement to freedom of expression.”

Bennet says it’s gone too far.

“I’m a big advocate and supporter of the First Amendment,” he said. “I actually think that’s one of the reasons I care so much about it. You know, I think the truth matters a lot. And on January 6, I was imploring my colleagues on the floor to say the truth. truth to their political supporters. We now know that this truth was well known to my colleagues and the so-called reporters at Fox News, who withheld this truth from their own audience for fear of losing that audience.”

The divide is clear, and few Republicans have supported the creation of a new regulatory agency for the digital age. There have been some bipartisan advances in the regulation of TikTok, for example, which both sides see as a threat of data collection from China.

But without a bipartisan effort in online news, cable news and the Internet will remain a modern Wild West with no truth-and-lies guardrails.