Media Regulation

How Much Can The Government Regulate The Media?

The First Amendment to the Constitution guarantees freedom of the press, meaning that the government cannot stop the media from reporting a story except under very special circumstances discussed below. However, the government can regulate media organizations as businesses, particularly broadcast media, who require a license to use a particular frequency to transmit their programming.  

In the United States, the allocation and monitoring of frequencies is handled by the Federal Communications Commission (FCC). Radio, television, and satellite stations must apply for a permit to broadcast from the FCC and reapply every four years.

As part of its licensing agreement, a broadcast station is required to abide by certain rules, including those covering local community issues and concerns. In addition, the FCC requires television and radio news providers to provide equal airtime to opposing major-party political candidates. FCC rules make it illegal for broadcast news providers to censor political ads paid for by political candidates. According to regulation, the FCC also cannot charge political candidates more for an advertisement than they charge a non-political candidate customer. These rules exist with the intent that a station cannot choose one candidate or side of the aisle to air and ignore the other.

Are Internet News Sources Regulated The Same Way As Print and Broadcast Media?

Digital news sources are not regulated by the FCC because they do not use public airwaves. Several laws exist to regulate content online, but intermediaries, like Google or Twitter, usually cannot be held liable for content published or purveyed on their platforms. For more details, see our policy brief on Section 230, linked in the Further Reading section.

What Are The Limits On Media Ownership?

Ownership of broadcast companies is also restricted by the FCC to increase the number of news sources available to the public. The FCC limits cross-ownership of more than two broadcast television organizations in the same market. These limits are designed to maintain multiple sources of news in the same region so that local, state, and national news is not just available from one source. Broadcast news companies can broadcast to up to 39% of the nation’s households among their combined news stations.

Even with these limits, ownership of TV and radio stations is highly concentrated. Five national companies, Sinclair, Nexstar, Gray, Tegna, and Tribune, own nearly forty percent of all local TV stations, and the percentage is increasing yearly. Of these, Sinclair network stations alone reach nearly 40% of Americans. These companies are often called “network news” organizations because one company owns a network of individual local stations that broadcast both local and national news. In 2018, the FCC removed a rule that said that all local television, cable, and radio stations had to have a main studio located in or near the area the station serves. This made it easier for national conglomerates to buy local news stations and develop programming at a single central studio.

Similar concentration levels exist for newspapers: in 2021, seven companies owned 57% of daily newspapers. Some broadcast companies also own newspapers.  

Does Ownership Matter?

In a 2019 study of 743 local television news stations across the country, researchers found that as local television stations were purchased by right-leaning national networks, the news they covered became more right-slanted than those that remained locally-owned. Network-owned stations also focused more on national rather than local news. Similarly, a 2010 study of daily newspapers found that the firm that owned a newspaper impacted the ideological slant of that newspaper’s reporting.

When Can The Government Stop Publication Of A Story?

The idea that the government could prevent publication or broadcast of a story is called “prior restraint.” A series of Supreme Court decisions have determined that prior restraint is allowable, but only under very limited circumstances. One of the most prominent cases in this area was the leak of the Pentagon Papers (a series of classified reviews of Vietnam War policy) to the New York Times and Washington Post by Defense Department contractor Daniel Ellsberg in 1971. The United States government sued the two newspapers to stop them from publishing the papers. The Supreme Court decided that freedom of the press was more important to the public interest than the government’s proof that publishing the papers would put the nation at risk in this case. This decision set the high burden of proof precedent in today’s prior restraint cases.

Can a Media Source Be Held Liable For What They Publish?

Freedom of the press and the high bar for prior restraint does not mean that news organizations cannot be held liable for their stories. For example, the US government can take legal action against a news media company that has published classified information. News organizations can also be sued for libel (defamation). However, the legal standard for public figures, including elected officials (that a news organization acted with “actual malice”) is difficult to prove.

What Informal Means Do Politicians Have To Control Media Coverage?

Public officials can attempt to privately coerce media organizations to shape news coverage even when no formal regulations exist. Called jawboning, this can be done by threatening regulation or action against a company if they do not comply with the informal request or by promising access to a future story in return for favorable coverage

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