and Common Cause Request FTC to Censor TV Network

July 19, 2004., Inc. and Common Cause submitted a document [10 pages in PDF] to the Federal Trade Commission (FTC) that requests that the FTC "institute a complaint against Fox News under section 5 of the Act, for deceptive practices in the advertising and marketing of the programming of Fox News Channel".

The document offers, and relies upon, detailed descriptions and analysis of the political news and editorial content of Fox News. The document also asserts that Fox's use of the phrase "fair and balanced" in connection with its political news and editorial content constitutes marketing to consumers. The document asserts that "fair and balanced" does not accurately portray Fox's political news and editorial content, and that Fox's use of the phrase "fair and balanced" is commercial marketing subject to FTC regulation under the Federal Trade Commission Act (FTCA).

Timothy MurisFTC Chairman Timothy Muris (at right) denigrated the submission. He only rarely comments on submissions to the FTC. However, in this case he promptly issued a public statement. He stated that "I am not aware of any instance in which the Federal Trade Commission has investigated the slogan of a news organization. There is no way to evaluate this petition without evaluating the content of the news at issue. That is a task the First Amendment leaves to the American people, not a government agency." and Common Cause argue that Fox has violated Section 5(a) of the FTCA, which is codified at 15 U.S.C. § 45. It provides, in relevant part, that "Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful."

More specifically, and Common Cause argue that they are not asking the FTC to issue a content based prior restraint of protected political speech. They assert that the only speech involved in their request is commercial speech, and that they only seek a restraint of the marketing practices of Fox pursuant to the FTC's authority under the FTCA.

They explain their argument this way. "To be sure, Fox News is free, under the First Amendment, to present news, commentary, entertainment and any other content, on its cable networks, in any way it wishes. It has no obligation whatsoever, under any law, actually to present a ``fair´´ or ``balanced´´ presentation of the news."

They elaborate that "What Fox News is not free to do, however, is to advertise its news programming -- a service it offers to consumers in competition with other networks, both broadcast and cable -- in a manner that is blatantly and grossly false and misleading. Under the Supreme Court's ``commercial speech´´ rulings, the government -- including this agency --may ban forms of advertising that are more likely to deceive the public than to inform it. That is certainly true of Fox News' use of the slogan ``Fair and Balanced.´´ Moreover, any claim by Fox News to First Amendment protection for use of this slogan is further undercut by Fox's efforts to use this slogan to suppress debate and free speech, through its trademark infringement action against the publisher and author of Lies and Lying Liars." See, Al Franken's Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right [Amazon].

Section 5(a) of the FTCA creates no private right of action in the courts. Nor does it create a private right to initiate an administrative proceeding before the FTC. The FTCA confers sole discretion to enforce Section 5(a) of the FTCA upon the FTC. Hence, the document submitted to the FTC by and Common Cause can only request that the FTC initiate a proceeding.

The FTC has no specific grant of authority to regulate the political news, editorial content, or political speech or broadcasters, cable companies, newspapers, or other publishers. Nor has it promulgated any regulations in any of these areas.

Also, any attempt by the FTC to engage in any such regulation would be constrained by the First Amendment of the U.S. Constitution, which provides in relevant part, that "Congress shall make no law ... abridging the freedom of speech, or of the press ..." The courts have long construed this amendment to constrain administrative agencies.

Moreover, the Supreme Court has held that the First Amendment confers different levels of protection upon different types of speech. For example, child pormography is entitled to no protection, commercial speech entitled to limited protection, political speech is entitled to the highest level of protection.

The Supreme Court has upheld regulatory regimes at other federal agencies that affect free speech rights. For example, the Federal Communications Commission (FCC) has sectoral regulatory authority with respect to broadcasters. The Courts have upheld various FCC actions that affect speech against First Amendment challenges. See for example, Red Lion v. FCC, 395 U.S. 367 (1969). Although, except in cases involving Janet Jackson's anatomy, Howard Stern, and indecency, the FCC has shown no enthusiasm in recent years for reviewing the content of programming.

Similarly, the Federal Election Commission (FEC) has regulatory authority over contributions and spending in federal elections that also limits the free speech rights of certain political participants. The Supreme Court has reviewed and upheld many provisions of the Federal Election Campaign Act (FECA), most recently in McConnell v. FEC (December 10, 2003). However, the FECA and the FEC's implementing regulations contain numerous exemptions for news stories and press entities.

Numerous cases involving the speech clause of the Constitution have been decided by the Supreme Court. Yet very few have been based upon facts similar to those presented by and Common Cause. There have been many cases involving pormographic expression, telemarketing expression, and symbolic expression. There have also been many cases involving regulation of the time place or manner of expression. However, very few of the cases decided by the Supreme Court have involved attempts to impose prior restraints upon political and editorial expression.

Two cases on point are Near v. Minnesota, 283 U.S. 697 (1931) and New York Times v. U.S., 403 U.S. 713 (1971). Neither of these cases offers any support to and Common Cause. In Near, the Supreme Court held unconstitutional a state injunction that was issued by a state court against a small newspaper. The applicable state statute did not purport to regulate speech. Rather, it purported to be a public nuisance statute regulating malicious, scandalous and defamatory newspapers. That the newspaper at issue was a scandalous rag that often published content with little concern for its veracity was not pertinent to Chief Justice Hughes, who wrote the opinion. It is protected speech, and its critics' remedy is post publication actions for defamation.

In the later case, which is more commonly known as the Pentagon Papers case, the Supreme Court held that the U.S. was not entitled to an injunction of the publication of the Pentagon Papers. While each Justice wrote an opinion, two wrote that no restraint of political news is ever permissible, while four more wrote that the test is very strict. And, national defense, international diplomacy, and saving the lives of U.S. servicemen was apparently not important enough for the Court to approve an injunction of political speech. In contrast, in the present case, and Common Cause seek regulatory relief to vindicate the political views of, Common Cause, and Al Franken.

Also, several Justices in the Pentagon Papers case wrote that it was significant that there was no Congressional statute authorizing the injunction of political speech such as that involved in that case. In the present case, there is no Congressional statute authorizing the FTC to regulate or enjoin political speech and editorial content of companies that publish news, or even authorizing the FTC to regulate marketing practices of news publishers.

Thus, given the state of First Amendment law, it is highly unlikely that and Common Cause will ever obtain any relief via the FTC in this matter. Nor would they if they complained to the FEC or FCC.

It is possible that this submission is made to the FTC, not to obtain regulatory relief, but to obtain publicity for their criticism of Fox News. A review of their websites reveals that both have published and publicized their criticism of Fox News.