This is the Catering Daily Podcast for Thursday, December 5th, 2024. I'm Caleb Brown. What might a weaponized FCC look like? We don't have to look that far either into the past or to other countries for what an agency nominally tasked with regulating certain communications might be technically able to do. Caterers Paul Matzko and Walter Olson offered their thoughts. Paul, there are a lot of concerns that the incoming Trump administration, if you take the former and now future president at his word with respect to what federal agencies ought to be doing to the businesses or broadcast outlets that have annoyed, offended, or in at least one case, just presented search results that were not to Donald Trump's liking. again, the office in the White House. Give me the worst case scenario for using government against those who have been offended. Yeah,

no, there's a very real threat of a kind of death by a thousand cuts using the regulatory state to go after Trump's critics. Some of this was there was some insulation against this during the first Trump term because the head of the FCC, Guy Magick Pye, was pretty committed to rule of law and to free speech principles. So he didn't, when Trump variously said, hey, NBC criticized my nuclear weapons policy, they should have their licenses for their local stations revoked. Atropay said, no, we're not going to do that, right? So there was some insulation in that the conservative members of the deep state were a little bit reluctant to just be pure partisan functionaries and just do the bidding of Donald Trump. But there is some concern that now, second time around, that the defenses, if you will, the immune system of the right is less, is more willing to do whatever Trump says, to extract partisan advantage from the regulatory state. So if you wanted to, there's a bunch of different ways using multiple agencies that Donald Trump could legally put pressure on critical news outlets or businesses that didn't agree with his policy. I'll just mention a few. So if you wanted the chairman of the FCC, the incoming chairman, could announce a series of hearings. They have unilateral power. One person can just say, we're going to do hearings into news distortion or misinformation on the airwaves. And they could drag in the heads, the directors, the CEOs of critical news outlets that criticize the Trump administration and its policies and force them to do a series of expensive and embarrassing hearings with the FCC. They could, in theory, President Trump could cite Section 706 of the Communications Act of 1934 and say, hey, there's a national emergency or there's a national security issue related to misinformation. And so I'm going to seize control of stations, broadcasting stations, and also even internet exchange points, the infrastructure of the internet, to fight back against this misinformation. So there's a bunch of different little regulatory mechanisms that the FCC or the president could use to suppress critical information. Now, most of those things wouldn't actually work in the sense that they would be challenged in court and they probably wouldn't pass legal scrutiny, but there is a kind of pyrrhic victory there. Like if your goal is simply to discourage outlets from criticizing the administration, you almost don't need to win in court. Merely the threat of lawsuits, the threat of a long, entangling, embarrassing legal battle can be enough to move coverage at the margins. And there's a deep history of this that we can talk about, of presidents weaponizing the FCC this way in the past. So it's a tool there just waiting to be picked up and used for partisan advantage.

I would just add that, unfortunately, you've got an existing debate about particularly themes of misinformation and so forth, picked up more actually by the left side of the spectrum in recent years and frequently leading to, in my view, horrendous policy proposals to try to bring in government power to snuff out misinformation from social media, from cable news, from various other things. And that is going to, unfortunately, set up an already sort of well-worn path for asking for certain types of regulatory things to be done.