Over two centuries ago, when the Founding Fathers set out to create a “more perfect Union,” they laid out a blueprint for our system of government in the Constitution. Understanding the need to enumerate basic freedoms and individual rights that could not be infringed upon by the government, the Founders also enshrined a Bill of Rights as a means of upholding a fragile democracy.

Foremost among the Bill of Rights is the First Amendment. By providing for freedom of religion, speech, the press, assembly and the right to petition the government, the First Amendment is the cornerstone to an informed and engaged populace. As we commemorate First Amendment Day, we celebrate 233 years in which the press has delivered the news free of fear of retaliation from the government thanks to the rights protected by these 45 words.

While the way news is gathered and delivered has changed throughout the history of the United States, the pressing need for trusted journalism has not. From natural disasters, global pandemics and conflict to heartwarming stories about heroic Americans and acts of public service, radio and television broadcasters deliver trustworthy news in their local communities every day.

Broadcasters face an added responsibility come November when Americans head to the polls to cast their votes in the midterm elections. By educating voters about candidates and issues on the ballot, working to get out the vote, providing reliable and accurate election updates and providing fact-based information on vote-counting processes and electoral procedures, local radio and television stations will be the go-to source for information about our democracy for millions. 

The proliferation of news online has given many Americans access to virtually unlimited information right at their fingertips, yet local radio and television continue to be the most trusted sources for reliable, fact-based reporting. With the rising trend of misinformation and disinformation on social media platforms and growing cuts to newspapers nationwide, broadcast radio and TV have an even more crucial role to play in delivering local news in every community. 

Of course, with great trust comes great responsibility. Broadcasters have responded to the changing world by innovating, investing in their newsrooms and expanding their operations to reach audiences whenever and wherever they are. Podcasting, HD radio, webcasting and smart speakers are empowering radio broadcasters to grow their programming slate that is readily accessible to listeners. 

Television broadcasters are transitioning to the ATSC 3.0 standard, currently on the air in more than 50 markets with several more readying to launch, providing more consumer-friendly features and greater capacity for unique, valuable programming. Broadcast TV stations have also significantly increased their local-news programming in recent years, with the number of local news telecasts increasing by 35% between November 2011 and November 2021. 

But providing cutting-edge, accurate local journalism is expensive, and the business model has been made all the more challenging by the rise of the Big Tech platforms. By acting as gatekeepers and controlling search and discovery of local news content on the one hand, while using their unparalleled reach and scale to dominate the local digital advertising marketplace on the other, Big Tech is distorting the business model for local media as our audiences move online. 

This market power allows the Big Tech companies to dictate the terms for monetizing content on their platforms, preventing local news outlets from fully realizing the value of news that appears online. And while broadcasters are subject to strict regulations regarding the size and scope of their stations, Big Tech platforms enjoy essentially unregulated growth and huge profits. Leveling the playing field to enable local broadcasters to compete for the betterment of trusted journalism and localism is our focus at the National Association of Broadcasters. 

When James Madison introduced the Bill of Rights in 1789, the pressing issues of the day may have been different, but the need for a free and open press was the same. From our nation’s founding to today, local journalism has endured through chaos and strife, victory and triumph. Broadcasters continue to embrace the tenets set forth by the First Amendment and are working in communities across the country to ensure that the strength and freedom of the press is unwavering. ■

The state of Maine has conceded that the law mandating cable a la carte violated the First Amendment, so it will not be enforced.

According to the Portland [Maine] Press Herald, the Maine Attorney General is no longer defending the law, and in fact has conceded that it ran afoul of speech protections.

In 2019, Maine passed a law requiring cable operators, but not other video distributors, to offer every channel and program a la carte, rather than bundled in a channel or tier of channels. Customers would have to buy the basic package before having the a la carte option for other channels and programs.

Comcast, A&E, C-SPAN, Discovery, The Walt Disney Co., Fox Corp., NBCUniversal, ViacomCBS and New England Sports Network (NESN) sued Maine Gov. Janet Mills, state Attorney General Aaron Frey and various cities and towns.

They argued the law was unconstitutional because it singled out cable speech for regulation, but excluded satellite or online video distributors, and said the law was pre-empted by the federal Communications Act. They then sought a preliminary injunction to block the bill’s implementation while the legal challenge was heard.

A district court enjoined enforcement of the law while the legal battle was waged. The U.S. Court of Appeals upheld the injunction, but according to the paper both parties asked the court to rule in favor of the cable challenge and the district court agreed, closing the case and meaning the law can't be enforced.

The Parents Television and Media Council, long a backer of a la carte as a way to give parents more control over the cable programming that comes into their homes, was not pleased.

“Yet again, the cable industry was able to wield its massive financial resources to thwart commonsense efforts by legislative, judicial and regulatory agencies attempting to give Americans greater control over the TV content they want coming into their homes," said PTC President Tim Winter. "This time it was a slick legal argument suggesting that the cable industry had been ‘singled out’ by the legislature. But the reality is that cable was only ‘singled-out’ because it is the only industry that forces a product bundle onto all consumers."

The U.S. Court of Appeals for the First Circuit has upheld a district court's injunction against Maine's cable a la carte law, concluding that the lower court did not abuse its discretion in granting the preliminary injunction.

Also Read: Judge Blocks Maine A La Carte Law

In 2019, Maine passed a law requiring cable operators, but not other video distributors, to offer every channel and program à la carte, rather than bundled in a channel or tier of channels. They would have to buy the basic package before having the à la carte option for other channels and programs.

Comcast, A&E, C-SPAN, Discovery, Disney, Fox Cable, NBCU, Viacom and New England Sports Network sued Maine's governor, attorney general and and various cities and towns in district court arguing the law was unconstitutional since it singled out cable speech for regulation, but not satellite or online video distributors, and was preempted by the Communications Act. They then sought a preliminary injunction to block the bill's implementation while the legal challenge was heard.

The bar for an injunction is high--four different factors must be met: 1) probability of success, 2) irreparable harm to the plaintiff if the injunction is not granted, 3) the balance of harms if the injunction is not granted tilts toward the plaintiff, and 4) it serves the public interest. 

The district court concluded that it was a speech regulation that requires heightened scrutiny, another high bar and one that Maine conceded its evidence did not clear. The district court granted the injunction, saying that while the law did not impinge on cable operators' editorial discretion, it did single them out for disparate treatment.

Also Read: Court Blocks A La Carte Law

The appeals court agreed that the law implicated speech and, given Maine's concession, it affirmed the district court injunction.

The appeals court said the district court can now decode which level of heightened constitutional scrutiny applies, whether the state can offer "post-enactment" evidence to support the law, and "even whether, on a more fulsome record, the state law is preempted." On the current record the district court concluded it was not preempted.

The appeals court also said it was leaving open the question of whether the law would trigger "singling out" concerns if it applied to satellite and internet-based distributors, saying a fair reading of the law is that the broader the scope of a regulation, the less likely it will raise First Amendment concerns.

Attorneys for former President Donald Trump are asserting that the President's claims of a stolen election and widespread fraud that needed correcting--by force if necessary-- so he could rightly remain in power are shielded by the First Amendment's protection of unpopular speech, including his barrage of tweets on the subject, which were repeatedly cited by House Impeachment Managers in making their case for Senate conviction.

Also Read:  Senate Receives Trump Articles of Impeachment

That came in a filing with the Senate in advance of the former President's impeachment trial next week. Trump has already been impeached by the House, for a second time. The Senate did not convict the first time around and is not expected to this time, either.

House Impeachment managers laid out their case for the high crime and misdemeanor charge of inciting the Capitol insurrection that left one policeman and four others dead and forced legislators and the Vice President to hiding from an angry and armed mob.

That case was built in part on the President's tweets leading up to the insurrection, tweets saying that he had won in a landslide but that the victory had been stolen from him, including the tweet even after the insurrection to the effect that "these are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots..."

But in response, Trump's lawyers said that following the election, the President had "exercised his First Amendment right under the Constitution that the election results were suspect..."

The President still denies that his statements were false and his lawyers said that like "all Americans" the President is "protected by the First Amendment," uniquely so among all nations, in that the Constitution "specifically and intentionally protects unpopular speech from government retaliation."

Also Read: Trump Video Calls out Insurrectionists

Trump is arguing that the entire impeachment trial is moot because he is no longer President. But if that argument does not fly, he needs to be ready to address the underlying charge of inciting a mob to attack the U.S. Capitol, which his attorneys did in part by invoking the First Amendment, sometimes loftily: "The actions by the House make clear that in their opinion the 45th President does not enjoy the protections of liberty upon which this great Nation was founded, where free speech, and indeed, free political speech form the backbone of all American liberties."

The National Association of Broadcasters joined in a letter from a coalition of news organizations to federal law enforcement agencies Thursday (Jan. 14) saying they wanted more information about the Jan. 6 attack on the Capitol as well as the potential for further violence around the inauguration of Joe Biden and Kamala Harris.

The groups said federal law enforcement was slow to hold in-person briefings about the attack or the possibility of others, which kept people in the dark and was both inexplicable and inexcusable, they said.

NAB President Gordon Smith earlier in the week called for briefings on potential threats to journalists from inauguration-related violence.

Also Read: NAB's Gordon Smith Urges Journalist Briefings on Potential Inauguration-Related Violence

"Going forward, we urge federal law enforcement agencies and officials to commit to holding regularly scheduled in-person press briefings about the investigations into the January 6 riot and continuing threats to our national and state governments," they wrote. "The media outlets and journalists we represent feel privileged to uphold the First Amendment by informing the public with vital information every day. But to perform their jobs most effectively, law enforcement officials must be more transparent. Given the clear challenges facing our democracy today, greater transparency and openness is a necessary prerequisite for restoring public faith in our political institutions and their operations, including security and law enforcement operations."

The letters went to Acting Attorney General Jeffrey Rosen; FBI Director Christopher Wray; Department of Homeland Security Acting Secretary Pete Gaynor; U.S. Capitol Police Acting Chief Yogananda Pittman; U.S. House of Representatives Acting Sergeant at Arms Timothy P. Blodgett; U.S. Senate Acting Sergeant at Arms Jennifer Hemingway.

Also Read: Protestors Force Suspension of Congress' Certification of Biden Victory

There are a lot "actings" on that list because following the attack, for which law enforcement appeared ill prepared, a number of security officials resigned.

Signing on to the letter, in addition to NAB, were the Asian American Journalists Association, National Association of Black-Owned Broadcasters, National Association of Hispanic Journalists, National Newspaper Association, Native American Journalists Association, News Media Alliance, News Media for Open Government, News Leaders Association, Online News Association, Radio Television Digital News Association, Reporters Committee for Freedom of the Press and Society of Professional Journalists.

The National Association of Broadcasters has launched a campaign to celebrate the 231st anniversary (Sept. 25) of the passage of the constitutional amendments that became the Bill of Rights, particularly the First Amendment that guaranteed free speech and a free press.

The campaign focuses on the key role broadcasters play in upholding those freedoms, coming at a time when broadcasters are taking an economic hit.

That campaign includes clip-and-use social media posts like "Thank you to those working to hold local officials and citizens accountable, to find the answers and to seek justice. This has never been more important. #Celebrate1A #FirstAmendment" and "Thank you to our trusted journalists who bring us the truth without fear or favor. #Celebrate1A #FirstAmendment."

That wording is often used by NAB President Gordon Smith in extolling the virtues of a free and independent broadcast press, which he did in unveiling the campaign.

“America’s founders, in their infinite wisdom, understood that our country could not long survive without a free press that could report the facts and deliver their opinions without fear or favor,” said Smith. “NAB celebrates this enduring principle that has kept our communities informed and engaged since our nation’s early days, and we honor the ongoing work of the press in preserving our democracy.”

The effort also includes a PSA as well as talking points for on-air editorials, including this one: "Especially during the pivotal events of the past six months, our most-trusted sources of news – our local radio and TV stations and broadcast network partners – have shown how essential a free press is to keeping people informed. Journalists have done remarkable work to keep their audiences informed during the COVID-19 pandemic, even as stations have had to drastically revamp their operations to create safe workplaces."

Cable operators are asking the FCC to make it clear its decades-old program-
carriage mandates are constitutionally suspect.

And while they have signaled to the regulator they are OK with leaving the question of the constitutionality of must-carry for another day, operators want the FCC to soften that ground with precedential language they could use if, and more likely when, they do want to take aim at must-carry and other carriage-related mandates.

In teleconferences earlier this month with top staffers to all five commissioners and the chief of the Media Bureau, representatives of NCTA-The Internet & Television Association and über-members Comcast, Charter Communications and Cox Communications pressed the FCC to continue to consider the constitutionality of enforced speech regulations, in this case the leased-access rules operators say are unconstitutional speech restrictions.

RELATED: Broadcasters Challenge Constitutionality of Carriage Mandates

In June 2019, the FCC voted unanimously (with a couple of partial dissents) to tweak the rules requiring cable operators over a certain size to lease channel capacity to independent programmers at regulated rates. More recently, it voted to allow operators to charge tier-specific rates. The agency also sought comment on whether the rules should be scrapped in their entirety as unconstitutional.

Leased-access providers obviously don't think the rules are OK, and broadcasters are in agreement — and not because stations lease access on cable. But if the rules were considered a violation of cable operators’ First Amendment right to choose the content on their systems, the must-carry regime that allows broadcasters to claim free carriage on cable could be in jeopardy.

In their meetings with FCC staffers this month, cable operators cheered the tier-specific rate change. But they also expressed their “strong support” for the agency’s conclusion, which the two Democratic members dissented from, that leased access rests on a shaky constitutional foundation in light of the changes in the video marketplace.

They asked the FCC to make it even clearer that the “constitutional foundation is in substantial doubt.” But while cable operators have long argued that must-carry is a similar unconstitutional infringement on their editorial control of channel lineups and capacity, as well as an illegal takings under the Fifth Amendment, they did not overplay that hand.

They told the staffers that the FCC’s leased access order “appropriately concludes that it need not express any opinion on the constitutionality of other carriage-related obligations in this proceeding, which is focused solely on the leased access regime.”

But the FCC would be strengthening cable’s case against must-carry if, as the cable companies asked in the meeting, it “bolstered” the conclusions about leased access and the First Amendment by reference to some legal precedent NCTA and company offered up.

Cable operators want the FCC to bolster the Draft Second Report and Order’s conclusion that leased access is constitutionally suspect. They say the FCC can do that by specifically referencing a 2015 Supreme Court decision that they say trumps the 1996 Time Warner Entertainment decision that regulation is content-based “only if it favors or disfavors particular speech or views.”

TWE’s holding that leased access and must-carry are not content-based has provided the chief defense against arguments by the FCC and cable operators that there are First Amendment issues with them since if they were considered regulations based on types of speech, they would have to pass “strict” scrutiny to pass constitutional muster. Content regulation is not unconstitutional, but it must be narrowly tailored and further a compelling government interest.

Cable operators say the 2015 Supreme Court decision in Reed v. Town of Gilbert supersedes the TWE ruling and holds that speech regulation is content-based even if it does not discriminate among viewpoints. They also pointed to the language in a 2018 decision in National Institute of Family & Life Advocates v. Becerra that “a content-based regulation of speech occurs whenever the government compels a party to alter the content of its speech.”

RELATED: TV Stations Ask FCC to Revive Item Regulating OTT

They asked the FCC to reference that precedent in the order, which would not only boster their case against the constitutionality of leased access, but would be precedent they could turn to for a must-carry challenge.

The National Association of Broadcasters got wind of cable’s requests for precedential language and pushed back, saying the FCC only needs to show only to show "that cable operators remained “dominant in some video distribution markets" to justify regulations, something the NAB said is clearly still the case. 

Broadcasters are pushing back on cable arguments that leased-access rules represent an infringement on cable's First Amendment rights, and for good reason. If broadcasters want to preserve their cable carriage mandate, which they definitely do in a world where most broadcast viewing is over cable and satellite retransmissions — the cord-cutting trend notwithstanding — they want to nip the First Amendment challenge to that other carriage mandate in the bud.

For one thing, and a big thing, if that leased-access channel mandate were considered a First Amendment violation, it would raise issues about the constitutionality of the must-carry regime, which mandates that cable operators carry any TV station if the broadcaster requests it. 

In June 2019, the FCC voted unanimously (with a couple of partial dissents) to tweak and review its rules requiring cable operators to provide channel capacity to independent programmers. The commissioners voted to approve a Report and Order (R&O) and Second Further Notice of Proposed Rulemaking (FNPRM) that would vacate the FCC's 2008 leased-access rules, adopt new ones that "reflect changes in the video programming market" as well as — and this is the sticking point for broadcasters — seek comment on whether the rules should still be in place at all.

In GOP Crosshairs 

The majority of FCC commissioners — specifically Republicans Ajit Pai, the chairman, Brendan Carr and Michael O’Rielly — clearly signaled that they thought there were First Amendment implications given the FNPRM language they supported (see box).

The Democrats’ partial dissents were tied to that language and the suggestion that the leased-access rules could be an unconstitutional abridgment of speech, the issue the National Association of Broadcasters is concerned about.

Under the leased-access rules, cable operators with more than 100 channels have to set aside 15% of those channels for leased access, with smaller operators having to provide a smaller percentage. 

Cable operators have said the rules are unconstitutional and should be eliminated, though they acknowledge the FCC can't simply scrap them because Congress imposed the mandate. 

In meetings with FCC officials, National Association of Broadcasters executives expressed no opinion on the agency’s changes to the leased-access rules, but they had plenty to say about how the government should look at their constitutionality, and that of "similar content-neutral rules." 

First, the broadcasters said, the FCC didn't need to get into constitutional issues at all in revising the rules. But if it did, the rules should not be looked at through the lens of strict scrutiny, which is the toughest First Amendment speech protection, but the lesser intermediate scrutiny applied to "content neutral" regulations and similar carriage requirements — that unspoken "must carry” regime, as well as program access and other carriage regulations.

Broadcasters also took aim at cable's argument that changes in the marketplace, including the proliferation of platforms for access and carriage — notably the internet — have reduced the need for forced cable carriage of independent content. For example, NCTA: The Internet & Television Association argued that YouTube alone provides plenty of unleased access to independent videos and voices.

The NAB executives said that given the "exponential" increase in cable channel capacity, any First Amendment burdens that may have been placed on multichannel video programming distributors (MVPDs) by leased access or must-carry have "significantly declined."

The NAB told the FCC that it is not saying marketplace and technology changes are irrelevant in determining if a regulation impacts speech. Given that MSOs with millions of video subscribers are the same ones that millions have to go through to get online video content, the NAB said, it might be premature to declare the death of the MVPD bottleneck. 

Broadcasters might be fighting an uphill battle, given that the rulemaking notice signaled the FCC might indeed wade into that First Amendment thicket. Pai has said he questions the constitutionality of the rules, so there is support from the top.

2008 Precedent in Peril

The FCC upheld the constitutionality of the leased-access rules back in 2008, finding that, as the court held in upholding the 1992 Cable Act, the government had a substantial interest in regulating cable speech and the regulation did not burden “substantially more speech than necessary to achieve the aim,” that aim being “promoting diversity and competition in the video programming marketplace.”

The Pai FCC said last year that times and the marketplace had changed, and suggested the substantial interest of the government in mandating carriage may no longer be justifiable.

If the FCC does conclude the leased-access rules violate the First Amendment, NAB said it wants the commission to make clear that would not mean open season on other carriage-related regimes, like must-carry. 

That is just the open season that cable operators are gunning for.

The FCC in June 2019 signaled it was leaning toward eliminating the leased access rules as an infringement on cable operators’ First Amendment rights to choose the programming on their platforms. That came in this language from its Further Notice of Proposed Rulemaking.

The First Amendment. “The changes in the video marketplace … call into question whether our leased access rules are consistent with the First Amendment. Specifically, while the leased access rules were originally justified as safeguarding competition and diversity in the face of cable operators’ monopoly power, the growth in available platforms to distribute programming seems to have eroded this justification.

“We agree that dramatic changes in technology and the marketplace for the distribution of programming cast substantial doubt on the constitutional foundation for our leased access rules. We recognize that we rejected similar constitutional arguments in the 2008 Leased Access Order, which we vacate today. Our analysis has changed because the facts have changed.”

The Justice Department is invoking the First Amendment--and the peaceful protests of George Floyd's murder--to support peaceful protest assemblies in the time of COVID-19, specifically a gathering to protest COVID-19-related restrictions in California.

The Justice Department has filed an amicus (friend of the court) brief in the Ninth Circuit in support of Ron Givens and Christine Bish, who are suing the State of California because they want to hold a protest with 500-1,000 people on the grounds of the State Capitol Building. 

Justice said a district court was wrong to to side with the plaintiffs against what DOJ said it's the state's "total ban on peaceful protests." 

"While States have broad authority to protect the public during the COVID-19 pandemic, the First Amendment does not give them carte blanche to ban peaceful public protests and rallies," Justice told the court. 

DOJ actually cited the George Floyd peaceful protests--the ones that got a little less so after the Attorney General had protesters moved to increase the perimeter around the White House. 

"[T]he real and legitimate national outcry over George Floyd’s tragic killing has shown the importance of peaceful public protests to maintaining our civic fabric—and has highlighted the extreme nature of a blanket protest ban in California," DOJ said.  

“Political speech in traditional public gathering spaces is at the core of the First Amendment’s protection of speech and assembly,” wrote Assistant Attorney General Eric Dreiband of DOJ's Civil Rights Division.  

Givens is a firearms instructor in Sacramento who is protesting delays in background checks "purportedly due to COVID-19," said Justice. Bish a Republican candidate for the House who wants to protest the state's handling of the coronavirus response. 

High school age girls and people of color, who face more online bullying, are more likely to say the First Amendment "goes too far" in protecting speech boys and white students.

That is one of the main takeaways from the latest Future of the First Amendment Knight Foundation report analyzing the results of seven surveys of high school students between 2004 and 2018.

According to Knight, beginning in 2011--about the same time of general adoption of social media--a slight majority of girls and students of color agreed with the statement: "The First Amendment goes too far in the rights it guarantees," while a slight majority of boys and white students disagreed.

White students' support for the First Amendment has been relatively stable, while students of color increasingly say the First Amendment goes too far.

Another major takeaway was that when students studied the First Amendment and the rights it guarantees, they are "generally more supportive" of those protections, and less likely to think the amendment goes too far.

The report also found that, generally, students in the Midwest and West were most supportive of the First Amendment, while students in the Northeast and South were more likely to say that the First Amendment goes too far.

As for the freedom to publish news online, boys were "significantly more supportive" of online news freedom than girls, and more supportive of people being able to say whatever they want, including offensive statements.

While students overall "mildly disagree" that schools should be able to discipline students posting offensive content online, girls and students of color are more supportive of punishments and girls are more supportive of government intervention for bullying or offensive comments on social media.

WASHINGTON — Critics of Republican Federal Communications Commission chair Ajit Pai have been pressing him to commit fully and unequivocally to not regulating issues based on the content of speech. However, a supporter of his network neutrality stance is using that same argument to justify Pai’s planned rollback of Title II-based rules.

Specifically at issue is the Open Internet order’s allowance for one type of discrimination — family-friendly filtering — and not others. A Supreme Court ruling made since the order was adopted would appear to make that allowance an unconstitutional content-based restriction — difficult to justify in court.

After President Donald Trump tweeted his suggestion that news outlets running stories he didn’t like should perhaps have their licenses challenged and revoked, Congressional Democrats and media activist groups, joined by journalists and many others, were up in arms. The idea that the content of speech should determine its regulatory protection, or the lack of it, ruffled many a feather.

But Brent Skorup, a research fellow at George Mason University’s Mercatus Center, in a meeting with FCC officials earlier this month, said content-based regulation was just what the agency had attempted to do in the Open Internet order, and does not withstand the strict constitutional scrutiny such speech-based regulation demands.

The key is a 2015 U.S. Supreme Court ruling, Reed vs. Town of Gilbert, having to do with an ordinance that allowed for different treatment of signs — religious, political, directional — based on content.

The court concluded, “A law that is content-based on its face is subject to strict scrutiny regardless of the government’s benign motive,” in this case allowing for discrimination on the basis of family friendliness.

Skorup said he thinks the FCC’s 2015 Open Internet order, which treated ISPs as common carriers under Title II of the Communications Act , has a rocky First Amendment road. “The Supreme Court clarified its standard for what is content-based,” he said, “and I think the rules and the order discriminate against different types of content.”

Pai is crafting a rollback of the rules, and legal defense, likely for a vote in December. He almost certainly has the two other GOP votes to pass it. But a reversal of the previous FCC decision will be challenged in court, so the more ammunition the chairman has to support that course change, the better.

Regulatory agencies are free to amend their rulings, something obviously more likely to happen under a change in administration. But to survive legal challenge, the FCC must demonstrate that the change was not arbitrary and capricious, and that it was a reasonable decision based on the record, which is required whether it is an initial decision or a changed one.

A record that includes violating the First Amendment would be a strong legal card to have in reserve.

The first returns from Capitol Hill on FCC Chairman Ajit Pai's response to President Trump's tweeted attacks on the press were not promising.

Pai told a Mercatus Center audience in Washington Tuesday, after being asked for comment, that he supports the First Amendment and that the FCC "doesn't have the authority to revoke a license of a broadcast station based on the content of a particular newscast."

The President, apparently angered by an NBC News story, had suggested someone "must" challenge the licenses of media outlets and the FCC revoke them if necessary.

Any member of the public can challenge a license, as could the FCC on its own initiative, but the FCC would have to conclude a broadcaster was not operating in the public interest, which is a high bar that has rarely been met.

Pai said Tuesday (Oct. 17) he was just reiterating what he has said before--though not publicly since the President's twitter storm last week--which was part of the problem.

“This statement is better than nothing," said Sen. Brian Schatz (D-Hawaii). "but it is merely a reiteration of the FCC’s authorities under the law. What we needed is a full-throated defense of the independence of the FCC against political interference. When the president announced his intent to retaliate against a broadcaster based on content, the FCC should have rejected it.”

Schatz is ranking member of the Senate Communications Subcommittee, which has primary jurisdiction over the FCC.

Rep. Frank Pallone (D-N.J.), ranking member of the House Energy & Commerce Committee agreed.

“Chairman Pai was right to assure the public that the FCC cannot revoke any broadcast licenses based on the content of a specific newscast," he said, "but I am disappointed that the Chairman continues to remain silent on the President’s ongoing efforts to intimidate and threaten news outlets.  The Chairman should therefore be prepared to commit—under oath, if necessary—that he will take no actions whatsoever to retaliate against news outlets in response to the President’s pressure.”

The Energy & Commerce Committee Communications Subcommitee has scheduled an FCC oversight hearing with Pai and the other commissioners for Oct. 25.

“Chairman Pai’s remarks do not sufficiently address my concerns – shared by newsrooms and journalists across the country – about a President who seems intent on curtailing their Constitutionally-guaranteed freedoms," said Sen. Richard Blumenthal (D-Conn.), who sought Pai's public disavowal of the President's attacks (http://www.broadcastingcable.com/news/washington/blumenthal-joins-call-f.... "The President’s comments were chilling and intimidating. What’s needed from the Chairman of the FCC is not just a restatement of the blackletter law, but a clear rejection and repudiation of the President’s suggestion, including a pledge to protect the free press from political interference.”

Free Press, which joined Schatz and other Democrats in calling for that full-throated, direct repudiation of the President, saw it as progress but also wanted more.

"I'm not sure why it took Ajit Pai almost a week to say anything about President Trump's dangerous comments, but I'm glad he is at least willing to acknowledge that the First Amendment still applies at the FCC," said Tim Karr, senior director of strategy.

"This isn't the first time Pai had to respond to a Trump attack against journalists; and it likely won't be the last. Trump's assault on press freedom will continue until enough people -- including those like Pai who have been carrying out his agenda -- renounce the president in stronger and more direct terms."

At the Senate Commerce Committee's FCC oversight hearing Wednesday (March 8), agency chairman Ajit Pai would not be drawn into the debate over President Donald Trump's attacks on the media, refusing to comment on Trump's "enemy of the people" characterization, but he stood by his past statements against the government pressuring news outlets to cover stories in a certain way and pledged to run an independent agency.

Outlining Trump's "open hostility toward media outlets" -- many of which have business before the FCC, "from regulatory matters to potential merger reviews" -- as well as Pai's historic statements in support of a free press and against White House pressure on independent agencies, Sen. Tom Udall (D-N.M.) asked Pai whether he also views the press as the enemy.

While Pai said he would not comment on issues beyond the commission, he associated himself with the comments quoted, including an op ed in which he wrote, "The government has no business pressuring media organizations into covering certain stories," and an interview in which he said the FCC should use the bully pulpit to continue advocating for free speech.

Udall said the president was using bully tactics against the media and asked Pai whether he agreed with Trump's comments.

"I don’t want to get into the larger political debates, but I will simply reaffirm the quotes that you offered," Pai said, referring to his own quoted statements.

"So you refuse to answer that," Udall noted.

"No," Pai said, adding, "I believe that every American enjoys the First Amendment protection guaranteed by the Constitution."

Pai would not comment on whether his discussions with Trump, including one earlier this week, covered any specific media companies, saying he would leave that question to the White House to answer. But asked if the FCC would operate independently of the White House, Pai said, "Absolutely."

Udall pressed further, asking if Pai would resist "any attempt by the White House to use the FCC to intimidate news organizations." Pai said he has consistently stated the FCC is independent and that he would render decisions based on law, precedent and what he and his colleagues think is in the public interest.

The chairman said he has not had any conversations with anyone at the White House about CNN or the AT&T-Time Warner deal.

Asked if he would immediately report to the committee if the White House contacted him about taking any favorable or negative actions regarding any media or communications business, Pai said he would follow all the appropriate ethical requirements that would apply.

CNN says it was banned from a White House briefing with press secretary Sean Spicer and is reporting the same went for the New York Times, Los Angeles Times and Politico. The New YorkTimes and Politico confirmed online that they were not allowed to be part of the post-briefing gaggle.

President Donald Trump has said the mainstream media are the enemies of the American people, including taking particular aim at CNN, which he has called "very fake news," and the New York Times, which he has branded "failing" and disgraceful." He  repeated the “enemies” characterization at the conservative CPAC conference Friday. "We are fighting the fake news," he told CPAC. "They are the enemy of the people. They have no sources. They just make them up  when there are none." The President challenged the media to stop using unnamed sources.

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CNN said Breitbart News (its former editor is a top Trump advisor), the Washington Times and One America News Network were allowed to participate in the off-camera briefing, as were other TV news outlets, CNN said.

"The WHCA board is protesting strongly against how today's gaggle is being handled by the White House," the White House Correspondents' Association said in a statement supplied to CNN. "We encourage the organizations that were allowed in to share the material with others in the press corps who were not. The board will be discussing this further with White House staff." 

“Nothing like this has ever happened at the White House in our long history of covering multiple administrations of different parties,” said Dean Baquet, executive editor of the New York Times, in a statement. “We strongly protest the exclusion of The New York Times and the other news organizations. Free media access to a transparent government is obviously of crucial national interest.”

Lynn Walsh, national president of the Society of Professional Journalists, suggested the move was out of line.

"Information coming from the White House Press Secretary should be expected to be on the record and open to all news organizations," she said. "The position, by title and purpose, is to share information with journalists and the public so insight and answers can be obtained from the White House and the President regarding policy, decisions and procedures."

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She said that while President Obama and other presidents had allowed one-on-one access to some hand-picked reporters, but said that was different from "a Press Secretary not allowing specific news organizations access to a briefing meant for groups of journalists."

“President Trump's calls for an end to anonymous sources was alarming. It is not the job of political leaders to determine how journalists should conduct their work, and sets a terrible example for the rest of the world, where sources often must remain anonymous to preserve their own lives,” said Committee to Protect Journalists  Executive Director Joel Simon. “We are concerned by the decision to bar reporters from a press secretary briefing. The U.S. should be promoting press freedom and access to information.”