If a company makes a false claim in an advertisement, the government has the power to hold that company accountable and not allow consumers to be fleeced.
That’s because the Federal Trade Commission regulates truth in advertising.
“When consumers see or hear an advertisement, whether it’s on the Internet, radio or television, or anywhere else, federal law says that ad must be truthful, not misleading, and, when appropriate, backed by scientific evidence,” the FTC boasts. “The FTC enforces these truth-in-advertising laws, and it applies the same standards no matter where an ad appears – in newspapers and magazines, online, in the mail, or on billboards or buses.”
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 put into stark relief last week when Fox News’ Tucker Carlson tried to rewrite history on the Jan. 6, 2021 attack on the Capitol.
Rioters, inspired by former President Donald Trump’s lies about the 2020 presidential election that he lost, stormed the Capitol in hopes of trying to stop the ceremonial certification of Joe Biden’s win.
Since then, more than 1,000 people have been arrested and are facing charges. More than 500 have been convicted so far for their roles that day.
And yet, after House Speaker Kevin McCarthy gave over a virtual pallet of video footage from that day – as part of a deal he struck with members on the right flank of the party to get himself elected speaker – Carlson went on air showing benign images from that day.
“The crowd was enormous,” Carlson said. “A small percentage of them were hooligans. They committed vandalism. You’ve seen their pictures again and again. But the overwhelming majority weren’t. They were peaceful, they were orderly and meek. These were not insurrectionists. They were sightseers.”
That’s severely lacking context. Many people who participated were charged with everything from entering a restricted building or grounds and disorderly conduct to engaging in acts of physical violence, theft and assaulting or impeding law enforcement.
Five people died during or soon after the riot. It’s estimated that more than $2.5 million worth of damage was done to the Capitol. And the FBI considers what happened that day an act of domestic terrorism.
Multiple Republican senators rebuked Carlson.
Sen. John Thune of South Dakota reaffirmed he considered what happened on Jan. 6 “an attack on the Capitol.”
Sen. Kevin Cramer of North Dakota said, “To put it in the same category as a permitted peaceful protest is just a lie.”
Sen. Thom Tillis of North Carolina was more blunt. “It’s bulls***,” he said.
So what can be done to police inaccurate reports on cable networks?
The answer is not much.
The Federal Communications Commission regulates the words that get said over the public’s airwaves – and it prohibits “distortions” to be broadcast over them. According to the FCC:
The FCC prohibits broadcasting false information about a crime or a catastrophe if the broadcaster knows the information is false and will cause substantial ‘public harm’ if aired.
FCC rules specifically say that the “public harm must begin immediately, and cause direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties.”
The FCC is prohibited by law from engaging in censorship or infringing on First Amendment rights of the press. It is, however, illegal for broadcasters to intentionally distort the news, and the FCC may act on complaints if there is documented evidence of such behavior from persons with direct personal knowledge.
But cable is a different medium. The words and images that come via cable are not through public, broadcast airwaves, or what someone can get on a TV with an antenna.
The FCC’s regulation only applies to licensed, local broadcast outlets that transmit through the airwaves. This is largely because of the way these regulations came to be. Because the first broadcast medium was radio and it was available to anyone at any time, public access signals are regulated.
“Unfortunately, the FCC does not have jurisdiction over cable networks,” former FCC Chairman Tom Wheeler said. “In fact, it doesn’t even have jurisdiction over networks like CBS and NBC who use the airwaves.”
Put another way: The FCC regulates the local stations that carry your local news programs, which are affiliates of CBS, NBC, ABC and Fox. But there’s essentially no regulation of what’s said on cable networks like MSNBC, CNN or, you guessed it, Fox News.
Lawmakers struggle for an answer
The lack of any control over cable news, allowing episodes like what Carlson aired, is frustrating for many, including Democratic Sen. Ben Ray Luján of New Mexico. He chairs a key subcommittee with oversight over cable.
“There should be more tools out there to ensure that nonsense like this is not happening,” Luján said. “And just as the affiliates on the broadcasting side have to get a license that would not allow this, why is it that folks on the other side within the same corporation are able to do it all while hurting the American people?”
Luján says he’s exploring his options, including potentially holding hearings and seeing if there’s more latitude that can be given to regulatory agencies.
But it’s likely a stretch.
“The primary difficulty comes from our Constitution, specifically the First Amendment, which guarantees freedom of speech and press,” said John Vile, a professor at Middle Tennessee State University, who co-edits the Encyclopedia of the First Amendment. “That has been interpreted particularly to mean that the government is not the arbiter of opinion. And any time the government has tried to arbitrate opinion, it ends up getting in trouble.”
So if established regulatory structures can’t do anything about cable, or opinions expressed on them, is there any way of holding it accountable?
“I think we’re seeing in the Dominion [case] that there is recourse through 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 lawsuit from Dominion Voting Systems against Fox News. It revealed Fox News executives and hosts, including Carlson, knew what they were putting on the air were lies about the 2020 presidential election that they didn’t believe.
But the Dominion case is a $1.6 billion defamation case. To win a lawsuit like that, a public person or company who feels they were harmed needs to show either knowledge of falsity or a “reckless disregard for truth,” otherwise known as the “actual malice” standard.
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 needing to prove “simple negligence” to win compensatory damages.)
To bring a lawsuit in the first place, though, there needs to be a person or company that can show “standing,” and that they were harmed in some way.
That makes it tougher to seek a remedy through the courts for something that’s said on cable news that’s a general lie or distortion.
The threat from social media and the Internet
When it comes to mis- and disinformation, though, the biggest perceived threat to truth has been from social media and the Internet. That’s why Sens. Michael Bennet, D-Colo., and Peter Welch, D-Vt., have proposed a new federal watchdog, the Digital Platform Commission, to try and regulate truth online.
“I believe that we can’t accept another 20 years in this country of digital platforms, transforming American life with absolutely no oversight or accountability to the American people,” Bennet said, adding, “I’d like us to have an alternative to the social media algorithms that are making the angriest and most 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, believing they are unfairly targeted for their ideology. Trump was kicked off Twitter and Facebook after Jan. 6 for violating policies related to encouraging violence, and many conservatives, including many GOP members of Congress have had their tweets flagged for spreading misinformation during the COVID-19 pandemic.
They see “free speech” as under attack.
“The Internet has democratized our political discourse,” former FCC Chairman Ajit Pai argued in a 2017 speech. “It has invigorated political debate. And in my view, it can help sustain our shared cultural commitment to free expression.”
Bennet says it’s gone too far.
“I am a huge defender and believer in the First Amendment,” he said. “I actually think that’s one of the reasons why I care about this so much. You know, I think truth matters a lot. And on Jan. 6, I was imploring my colleagues on the floor to tell their political followers the truth. We now know that that truth was well known by my colleagues and by the so-called journalists at Fox News, who have withheld that truth from their own viewership for fear that they were going to lose that viewership.”
The divide is clear, and there haven’t been many Republicans to go along with the creation of a new regulatory agency for the digital age. There have been some bipartisan strides on regulating TikTok, for example, which both sides see as a data collection threat from China.
But without a bipartisan effort when it comes to information online, cable news and the Internet will remain a modern-day Wild West with no guard rails when it comes to truth and lies.