There is an original sin in the nation’s telecommunications laws. Dating back to the beginning of radio licensing, Congress has mandated that licensees operate in the “public interest, convenience, and necessity.” While regulations governing phenomena like interference are imperative to ensure that the public can use the electromagnetic spectrum effectively, a body of rules and policies has developed from the public interest standard that permit the Federal Communications Commission (FCC) to regulate content over the air. Whatever constitutional purchase that aspect of the public interest standard may have had in the analog era of the “Big Three,” recent censorial moves by the FCC make it clear that the law needs to change. Content-based regulation of broadcasts must meet the same First Amendment tests as similar restrictions in any other medium.

In Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969), the Supreme Court upheld the “fairness doctrine,” which required every broadcaster “to give adequate coverage to public issues” that is “fair in that it accurately reflects the opposing views.” The doctrine was enforced primarily through the Commission’s licensing authority. The Court, acknowledging that the doctrine granted the FCC extraordinary authority to regulate speech and the press, held that such power was appropriate because radio and television frequencies are inherently scarce and the government thus had an obligation to regulate the content of broadcasts to ensure fair and balanced coverage on issues of public importance.

Unbeknownst to the justices, however, the Red Lion case originated in a “politically motivated campaign to use the fairness doctrine to harass stations airing right-wing commentary, an effort inspired and managed by the White House and the Democratic National Committee and largely financed with political contributions.” The Nixon administration and its allies then used the same playbook to lean on broadcasters perceived as unfavorable to the President. The FCC abandoned the doctrine during the Reagan administration, partly in recognition of the danger such regulatory authority posed to press freedom.

Although the fairness doctrine is now defunct, it underscores how the FCC’s powers to regulate broadcast licensees can be used to suppress viewpoints perceived as unfavorable to the party in power.

Much has changed since the Court decided Red Lion. The audience for over-the-air broadcast is shrinking while internet-based media like streaming grow in both viewers and listeners as well as influence on issues of public concern. (Simultaneously, broadcast remains an essential medium for huge numbers of Americans, especially those of fewer means, making government interference in content decisions that much more fraught.)

The conditions that previously supported the Supreme Court’s decision in Red Lion have thus completely changed. The Government, particularly an agency with potent licensing and merger review authority, should have no power to regulate broadcast content beyond any that the government currently possesses for any other expressive medium (namely, the power to regulate unprotected speech or restrictions that meet strict scrutiny, which few will). Congress should clarify as much in statute, or a challenge should be brought to the Supreme Court to overrule Red Lion.

Indeed, Red Lion has never been disavowed, although the justices have expressly declined to extend it to other, later-developed communications media, including cable television (Turner Broadcasting v. FCC) and the Internet (Reno v. ACLU), to which the “scarcity” rationale for regulation is plainly inapplicable.

As long as the Red Lion precedent stands, every president will have the authority to assert control over broadcast content. This threat has only been magnified under the current administration.

In response to congressional questioning regarding whether the FCC might take enforcement actions based on constitutionally-protected editorial decisions by media companies, Chairman Brendan Carr stated that the FCC has “walked away from enforcing the public interest standard, and I don't think that's a good thing.” He also cited the news distortion policy and the broadcast hoax rule, which derive from the public interest standard, and stated that his position “is that we should be enforcing those rules and policies.” And, in January 2026, the FCC issued guidance suggesting that it would narrow the “bona fide news” exception to the equal time rule, which permits candidates whose opponents are afforded access to a licensee’s facilities to demand an equal opportunity for airtime.

This May, the FCC issued a Public Notice to “remind broadcasters of their longstanding public interest obligations and further ensure that broadcasters are continuing to comply with the public interest obligations that underpin their licenses.” The notice opened with a reiteration of the spectrum scarcity rationale that grounded the Red Lion opinion. It further stated that although the FCC has reduced many burdensome broadcast regulations, “the role of the Commission in determining whether broadcasters have met their public interest obligations has not faded.” And, emphasizing the Commission’s public interest authority, the notice asserts, “Where the Commission finds that a broadcaster has failed to serve the public interest, the Commission may take appropriate action, including enforcement action, grant of a renewal application with conditions and/or on a short term basis, requiring a licensee to file an early license renewal application, or designating an application for hearing.”

Given the danger of direct censorship inherent in the misuse of the public interest standard, Congress should exercise its responsibility to preserve the free flow of newsworthy information to the public by clarifying the scope of the standard to prevent overreach by the Commission.

Another approach could be a legal challenge seeking to overturn Red Lion. An opportunity for such a case may be on the horizon, as the same day the FCC issued its May Public Notice, ABC filed early license renewal applications for its eight owned-and-operated stations pursuant to an April 28, 2026 FCC order. ABC included with each application a detailed public interest statement and an objection that describes the FCC’s early renewal mandate as an “effort to suppress free speech under the guise of bureaucratic process.”

However the law changes, Chairman Carr’s cloaking of his efforts to influence broadcast coverage in the public interest standard make it clear that it must change. Indeed, fewer things could be more outside the public interest than an FCC interfering in what we see and hear over the air.