Op-Ed

[Commentary] By their silence, the Republicans at the Federal Communications Commission have joined in the president’s strategy to get into the head of every television station news editor and station manager in the country. If, because the FCC failed to make clear that the government can’t bully them, even one broadcaster thinks twice about a story and its effect on their license, then the Constitution has been abridged and the FCC is complicit.

By their inaction, the Republican FCC commissioners have already violated their oath to uphold the Constitution. That sacred document is clear: The government is not to suppress ideas and opinion. There is no ambiguity in the First Amendment. The commissioners owe it to the American public and the Constitution they swore to uphold to issue an immediate and clear statement that speech is a protected right, and that it has no role in the matter of broadcast licenses. While they’re at it, they should also issue an apology to the citizens of the United States that they took over two days to get around to telling America the truth.

[Tom Wheeler is the former Chairman of the Federal Communications Commission 2013-2017].

[Commentary] I worry that as we focus on Russian bots on Twitter influencing elections, we’re ignoring a bigger threat to democracy and the political process right here at home: the proposed merger of Sinclair Broadcast Group with Tribune Media Company. Imagine what could happen to politics if Sinclair becomes the dominant local news gatekeeper.

With their time tested tactic of depopulating local news of trusted anchors, “disappearing” reliable “gatekeepers” the way Pol Pot eliminated dissenters, there wouldn’t even be news voices in key markets with the stature to help primary and caucus voters distinguish between truth and tall tales. Just think of the election eve surprises that a Sinclair broadcast could offer before the Iowa caucuses. There’s no shortage today of people and platforms aiming to divide Americans. They don’t just reside in the Kremlin. Think twice before greenlighting a merger that would enable even more “trumpization” of American politics.

[David Wade was national press secretary for the 2004 John Kerry campaign and served as spokesman for vice presidential nominee Joseph Biden for the 2008 Barack Obama campaign. He is founder of the strategic communications firm Green Light Strategies.]

[Commentary] In recent years, a number of states have endeavored to get into the internet policy game. As the internet diffuses across the economy, the urge to act at the state level will likely strengthen. We saw this recently when California legislators proposed their own internet privacy law after Congress struck down a 2015 internet privacy regulation using the Congressional Review Act, and the Federal Communications Commission (FCC) issued its Restoring Internet Freedom proposal.

But to the extent that Congress, the FCC, and the FTC have the authority to protect the free flow of internet activity against state-based obstacles and fragmentation, they should do so. In its coming order, the FCC should reaffirm the interstate nature of these services.

[Bret Swanson is concurrently president of Entropy Economics LLC]

[Commentary] As a candidate, Donald Trump deserved credit for identifying a policy that damages jobs, competitiveness, and economic growth: underinvestment in infrastructure. Unfortunately, Trump’s plans as president, including his budget and tax proposals, in combination with congressional politics, suggest his overall impact on infrastructure will make a bad situation worse. Would the long-promised $1 trillion infrastructure fund more than make up for the problems the tax bill creates? The answer is no. A

s President Trump finally admitted, his plan will not work. Candidate Trump’s plan was premised on attracting private capital to fund infrastructure. But that would only help projects that directly produce revenues, leaving out such needed projects as local roads, schools, and fire stations, among others. Public funding is essential to building a broad coalition necessary to move forward with a national infrastructure bill. Private financing not only limits the kinds of projects financed, but also limits where the projects will be located. Other than in broadband, nearly all the kinds of infrastructure projects—airports, transit, bridges—capable of attracting the kinds of revenue necessary to secure funding, are in metropolitan areas. That would limit the political attractiveness of any legislation to rural congressional members, whose voting block is sizable. The administration’s tax plan, however, now makes the fiscal politics for public funds impossible. In short: Trump’s tax plan would decrease funds for the principal sources of infrastructure financing; his original infrastructure plan is dead; and his tax plan will put the country in a position where no infrastructure plan is likely to move forward. That combination would only intensify national infrastructure challenges.

[Blair Levin is a nonresident senior fellow with the Brookings Institution Metropolitan Policy Program. Adie Tomer is a fellow at the Brookings Institution Metropolitan Policy Program and leads the Metropolitan Infrastructure Initiative.]

[Commentary] Many have commented on the First Amendment implications if President Donald Trump were to actually go after NBC’s license (or really, the licenses of local affiliates since NBC itself doesn’t need a license) or the NFL’s tax status. But President Trump need not act on his threats for his actions to be considered a First Amendment violation. There’s a compelling argument Trump is in violation of Constitution right now—after he crossed the line from criticism of protected speech to openly threatening government action.

There’s plenty of case law on this subject from the Supreme Court to appeals courts around the country. Most recently, in a case in the Seventh Circuit called BackPage LLC vs. Thomas Dart, Sheriff of Cook County, Illinois, just-retired Judge Richard Posner articulated exactly why Trump may already be running afoul of the First Amendment merely through his threats.

[Trevor Timm is the executive director of Freedom of the Press Foundation]

[Commentary] Ultimately, the power of fake news is in the minds of the beholders — namely, news consumers. We need a news consumers’ equivalent of the venerable Consumers Union that, starting in the 1930s, mobilized millions behind taking an informed approach to purchases, or the more recent drive to empower individuals to take charge of their health by reading labels, counting steps, and getting tested for risk factors.

Recognizing fraudulent news as a threat to free expression cannot be grounds to justify a cure — in the form of new government or corporate restrictions on speech — that may end up being worse than the disease. Unscrupulous profiteers and political opportunists may never cease in their efforts to infect the global information flow of information to serve their purposes. The best prescription against the epidemic of fake news is to inoculate consumers by building up their ability to defend themselves.

[Suzanne Nossel is executive director of the Pen American Center and was formerly deputy assistant secretary of state for international organizations at the U.S. State Department.]

[Commentary] Are social media platforms like Twitter subject to the First Amendment? Is there a right to free speech on social media owned by private corporations? The Knight First Amendment Institute thinks so. In July, the institute sued the president, his director of social media, and his press secretary to unblock the blocked. By banning these users based on views they expressed about tweets by the president, the Institute argues, Trump violated the users’ right to free speech because the blocks were based on disagreement with the users’ messages. Two weeks ago, as part of this litigation, lawyers for the president acknowledged that he personally blocked the Twitter users “because the Individual Plaintiffs posted tweets that criticized the president or his policies”—what free speech law calls “viewpoint discrimination.” In places where the First Amendment applies—such as public forums—it bars the government or its officials from such bias....

As it stands, the country’s libertarian conception of free speech is allowing, and even ferociously feeding, an erosion of the democracy it is supposed to be essential in making work—and some government regulation of speech on social media may be required to save it.

[Lincoln Caplan is the Truman Capote Visiting Lecturer in Law at Yale Law School ]

[Commentary] Cable is no longer the “bottleneck” that Congress once assumed it was for delivering video into American homes. This calls into question the continuing value of must-carry, retransmission consent and other regimes based on this premise.

As a mature-to-declining product, cable must cut costs to remain viable against new competitors. This dynamic explains the recent rise in merger activity among cable operators. Building economies of scale can strengthen regional cable operators’ negotiations with programmers and can help them compete more effectively against Netflix and other alternatives, which are national in scope. It is important that antitrust regulators recognize cable as only one part of a larger market for video services — and allow them to compete accordingly.

[Daniel Lyons is an associate professor at Boston College Law School]

[Commentary] We’re just digesting and analyzing the impact to the nation of being exposed to untruthful news stories. (Note: I’m following Dan Gillmor’s advice and not using “fake news,” because that term has been hijacked by Donald Trump to refer to news he disagrees with.) And while this may be the most severe example of being misled by the Internet, it’s certainly not the only. In fact, the internet is filled with cases whose sole purpose is to trick and deceive us under the guise of offering useful information.

[Phil Baker is a product development expert, author and journalist covering consumer technology. ]

[Commentary] Congress is about to make a major decision about privacy protection, civil liberties and national security. The 2008 Foreign Intelligence Surveillance Amendments Act, including its most controversial provision, Section 702, is set to expire on Dec. 31. The two of us — both members of the panel that President Barack Obama appointed in 2013 to review the government’s foreign intelligence programs in the wake of Edward Snowden’s disclosures — agree that FISA Section 702 should be reauthorized but with a significant reform.

The government should no longer be permitted to search the data collected under Section 702 without a warrant when seeking information about US citizens and legal permanent residents. There is, however, one aspect of the way the 702 program has evolved that we believe needs to change: the FBI’s practice of searching the data for information on Americans without first obtaining a warrant. Americans are entitled to full protection of their privacy. They should not lose that protection merely because the government has information in a foreign intelligence database that it legally acquired. Importantly, the government collected that information by using a standard that could not be legally be employed to target an American anywhere in the world.

[Geoffrey Stone is a law professor at the University of Chicago. Michael Morell was the deputy director of the CIA from 2010 to 2013 and twice served as acting director.]