All the President’s Empty Threats

10 Minute Read

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APRIL, 2020

Written by
Mark M. Leitner

This post is the second in a series discussing President Trump’s defamation suits and threatening letters against the media, and evaluating whether the law supports those efforts.

All of the claims that the President asserts start with a huge obstacle in the path to victory: he is complaining about statements made in the context of a political campaign. The Supreme Court ruled in 1971 that, “it can hardly be doubted that the [First Amendment] has its fullest and most urgent application precisely to the conduct of campaigns for political office.”[1] There are many cases before and after upholding the same principle: political speech is the core of protected speech, and speech about candidates and campaigns is the core of that core.

It’s no surprise that the cease and desist letter ignores that principle. The letter is a piece of advocacy, and at this stage President Trump is trying to intimidate the other side into stopping the ads. The President isn’t shy about relying on legal authority: the letter cites three court cases and one administrative decision. None of these, however, involves a broadcast licensee that was denied renewal because it refused to stop airing a political advertisement over the objections of a candidate criticized in the ad.

When you send a cease-and-desist letter, you want the recipient to obey, so you want the letter to be as strong as possible. When the other side’s lawyers check your research, their reaction should be “damn! We might be in trouble here.”

It’s a telling omission. When you send a cease-and-desist letter, you want the recipient to obey, so you want the letter to be as strong as possible. When the other side’s lawyers check your research, their reaction should be “damn! We might be in trouble here.” If Trump had any authority showing that FCC denial of the station renewals was a real threat, it would have been in the letter.

And there is a reason why there isn’t any authority like that. In 1986, the Reagan administration’s deregulation of broadcasting was well underway. As part of that deregulatory effort, the FCC issued a new policy on how it would apply the statutory requirement that it evaluate a license applicant’s “character” (among many other criteria).[2] One of the issues it addressed was deceptive advertising – that is, deceptive advertising in general, not limited to the core first amendment speech involved in advertising related to a public official, candidate, or campaign.

The FCC’s policy statement is crystal clear: even outside the highly-protected core of political campaign speech, deceptive advertising is not a licensing qualification matter unless there is a “knowing presentation” of deceptive advertising, which requires proof of “active participation of the broadcaster in perpetuating the deception.”[3]

President Trump might seize on this, arguing that if the local affiliates kept airing the ad after receiving the letter, they were “actively participating” because they had learned The Truth from Trump. The FCC foreclosed that avenue too: there are only two ways to show “knowing presentation”: either the licensee’s “active involvement in the knowing creation of a deliberately fraudulent ad” or its “awareness of a Federal Trade Commission or other final governmental action involving the ad in question.” Finally, the Commission made clear that it would not decide whether an advertisement was deceptive: “Complaints which require determinations as to whether certain advertising actually is fraudulent” would be referred to the Federal Trade Commission, consistent with existing FCC practice.

The affiliates didn’t participate in making the Priorities USA ad, and there isn’t any FTC or other agency or court decision finding the ad deceptive. (If either existed, it would have been included in 36-point type in President Trump’s letter.) So there is no chance that the FTC would deny license renewal to any of the affiliates based on their running the Priorities USA ad. That part of the cease-and-desist letter is completely frivolous.

Later this week, I will discuss why that’s also true for the defamation threat in the letter, and the three already-filed lawsuits.

[1] Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971). (return)

[2] In re: Policy Regarding Character Qualifications in Broadcast Licensing, 102 F.C.C.2d 1179, 1213 (1986) (return)

[3] Id. (Emphasis added.) (return)