At risk of exhausting the word "unprecedented," that's the best way to describe the strong-arm tactics of the Trump Administration that have wrought havoc with late-night comedy and hammered historically stalwart network news into conformity. Accusing media of treason for not favorably spinning the Iran war is beyond the pale.
Early in the history of U.S. telecommunication regulation, the U.S. Supreme Court upheld the government power to regulate in the public interest. The Court, like the public, was wary of seemingly miraculous new communication technologies. And transmission over unseen electromagnetic waves posed real technical challenges, such as interference and scarcity.
Even when the civil rights era sparked a sea change and invigoration in First Amendment jurisprudence, the peculiar prerogative of public broadcasting regulation persisted.
Researchers and social activists raised alarms about the impact of television on child development. With "the first televised war" in Vietnam as backdrop, many commentators theorized a causal link between television and social unrest. Accordingly, First Amendment law enshrined the principle of "media balkanization," meaning government regulatory power varied by medium, as between, for example, a newspaper and a TV station.
Late in the 20th century, the status of the internet in the schema of media balkanization was much debated. The internet blurred traditional lines, such as between print and broadcast, and as between journalist and ordinary citizen. As the internet became pervasive in American life, and the technology improved toward handheld recording and video streaming, the prospect of internet regulation seemed ever less akin to broadcast licensing and more akin to censorship.
Thus, in the 1990s, the Supreme Court charted a course away from disparate treatment of the internet. Still, balkanization doctrine has never been addressed definitively in the digital age, much less abolished. Internet abuses, from revenge porn to social media addiction, continue to bolster arguments for regulatory models tailored to the online environment. And conventional broadcasters still have a foot in the bear trap of FCC licensing, as the agency nears its centennial.
Carr and Trump's threats thus occur at a nadir of constitutional confidence in the government power to regulate by way of broadcast licensing.
Yet constitutionality might be beside the point. A lesson Trump learned well in a lifetime of litigation is that the powerful economic actors that dominate our society fear uncertainty and risk more than they fear impact and loss. That is to say, the Sword of Damocles is more dangerous for its potential than for its blade.
The threat to censor, or to impose transactions costs in resisting censorship, has proven effective in compelling commercially minded media corporations to toe the official line.
And therein lies an especially pernicious threat to free speech, because our legal system is, thus far, profoundly ill equipped to counter.
