Kidvid First Amendment Challenge Could Work, Would Be Politically Difficult, Attorneys Say
A First Amendment challenge of FCC kidvid rules could be successful yet politically fraught, broadcast attorneys told us, reacting to Commissioner Mike O'Rielly's remarks at a Media Institute event Wednesday evening. In a speech on First Amendment threats, O'Rielly cautioned opponents of the proceeding that they “might want to reconsider” opposing his deregulation effort because a successful First Amendment challenge could lead to the rules being struck down altogether. Legal scholars "quite convincingly" have made the case kidvid rules are content-based restriction that don't fulfill a compelling government interest, and thus are contrary to the Constitution, he said.
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The NPRM comment period wrapped up this week (see 1810240054), and though many broadcasters support O'Rielly's efforts, most haven't argued the rules are unconstitutional. “Most broadcasters aren't trying to tear the whole thing down," said industry lawyer Jack Goodman, NAB general counsel when many of the rules were created. The NPRM does seek comment on the rules' constitutionality, O'Rielly said. The FCC isn't expected to roll out an order on kidvid until 2019. Thursday, O'Rielly's office and the FCC didn't comment.
The case for keeping the kidvid rules has “only grown more frail” since they were created, said Davis Wright First Amendment attorney Robert Corn-Revere in an interview. He wrote a Cato Institute paper in 1997, after the current kidvid rules were created, comparing them to the totalitarian government in the dystopian novel 1984. Technological change has removed the basis for the rules, and in recent decisions such as the South Dakota v. Wayfair online sales tax case, the U.S. Supreme Court said laws should be re-examined in the context of technological advances, Corn-Revere told us.
Kidvid rule opponents believe a First Amendment challenge is more viable after the Trump administration's appointment of two Supreme Court justices, emailed University of Minnesota School of Journalism assistant professor-media law Christopher Terry. “The last legacies of content regulation could easily be swept into the outcome of a decision by SCOTUS over kid tv rules that eliminates the FCC's ability to regulate/mandate content.” Constitutionality of kidvid rules hasn't been challenged in court, but since they regulate content, they would fall under the court's strict scrutiny standard, said Goodman.
The rules haven't been challenged because they were created as part of an agreement with the broadcast industry, and because any such challenge likely would have political and public relations consequences for the broadcasters involved, industry lawyers agreed. With a rulemaking on relaxing them ongoing, broadcasters aren't likely to pursue a First Amendment challenge now, the attorneys said. A deregulation effort led by a commissioner has a much clearer path to success than litigation, they said.
Not Imperiled?
Not everyone agrees the rules are so vulnerable.
They are one of the few public interest benefits broadcasters still offer in exchange for use of the public airwaves and “the financial bonanza known as retransmission consent,” said Center for Digital Democracy Executive Director Jeff Chester. O'Rielly “is saying the public should be happy to give away to TV station licensees a public resource without compensation,” Chester said. “Mr O’Rielly must go to bed at night with a picture of former FCC Chairman Mark Fowler under his pillow,” Chester said, referencing Fowler's reputation for supporting deregulation. O'Rielly praised media scrutiny of public officials but also compared the experience of such scrutiny to being “rapidly and repeatedly kicked in the head by a mule.”
Efforts to "tweak" kidvid rules are "a complete and utter waste of time" if the rules are unconstitutional, said Parents Television Council President Tim Winter Thursday. PTC argued the kidvid NPRM process isn't extensive enough, won't gather enough information and should be paused or rethought. "Debating rule modifications for an unconstitutional statute makes as much sense as debating the arrangement of deck chairs on the Titanic," Winter said. "Any consideration of KidVid rule changes demands a regulatory review process that exceeds the scope of this NPRM."
“The commission could make some significant changes in this area without needing to attack the Children’s Television Act,” said Fletcher Heald's Anne Crump. There's "nothing statutory” about the three-hour requirement or the definition of core programming, and the FCC “is quite free to make major changes,” she said. One broadcast lawyer wouldn't put the odds of successful litigation against the rules at better than 50 percent. No one interviewed was aware of a nascent effort to challenge the constitutionality of kidvid.
Municipal broadband and pirate radio are other First Amendment threats, O'Rielly said Wednesday. Muni broadband is a "particularly ominous" free speech threat when the systems include restrictions on content deemed threatening or hateful, O'Rielly said. He said such restrictions are inherently decisions made on a "whim."
In a separate Media Institute address, Fox News Sunday host Chris Wallace cautioned against the media lapsing into "tribal news coverage" in response to the rise of tribal politics and to verbal assaults on media by President Donald Trump. He called it "most alarming" that Trump's attacks, seen as shocking early in the administration, are "now part of the national bloodstream," with trust in the media decreasing. Too many journalists are responding "to his invective with attacks of our own," Wallace said. "When we fall into that trap, we're playing the president's game."