The First Amendment May Not Protect Us: Trump’s FCC Intensifies Attack on Press

Media advocates everywhere were alarmed, if not surprised, when Donald Trump recently appointed former Verizon lawyer Ajit Pai to be the next chairman of the Federal Communications Commission (FCC). Central questions include what Pai’s appointment will mean for freedom of the press and the future of the internet. Sources who have met Pai, who is active on social media, describe him as smart and affable, but with a militant, ideological opposition to regulating Big Media and Telecom. An FCC controlled by Trump and Pai, the latter of whom has “been on the wrong side of just about every major issue that has come before the FCC,” according to the media reform group Free Press, poses a serious threat to democracy.

Pai, an FCC commissioner since 2012, has constantly sided with the powerful media and telecom lobbies. He pledged to take a “weed whacker” to net neutrality, opposed lowering the cost of phone calls for families of people in prison, and enabled devastating media concentration with his opposition to ownership restrictions. His promotion to chairman was met with glee from free-market ideologues and executives at big media and telecom companies, such as AT&T, who promised to help Pai “support the president’s agenda.”

Trump has already shown an extreme level of hostility toward the press. Now, he will have the Pai-led FCC to function as his own personal toolbox to undermine the free press. As Americans unite in resistance to Trump, it is vital that they take notice of what is going on at the FCC.

“The FCC is designed to protect the media in the interest of the public. But as a commissioner for all these years, I have seen it become a willing accomplice in diminishing our media,” said former FCC chairman Michael Copps, in an interview with Truthout. “We have a sad state of affairs in the media … Pai opposes any kind of government oversight. So I am deeply worried.”

The Fragility of the First Amendment

The FCC was created in 1934 to make media and communications “available so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex.” At the time, it mostly applied to radio, but it has expanded to include virtually all our methods of mass communication: telephone, television and the internet. When functioning as it should, said Free Press strategic director Tim Karr in an interview with Truthout, its “existence is vital in protecting basic freedoms of speech that are important to Americans.”

Indeed, the public has long revered the First Amendment, by far the most well-known and appreciated amendment in the Constitution. But polls also show a great deal of confusion over what the amendment does. This combination of reverence and ignorance has led to what Karr calls a “naïve perception that the First Amendment will always be there to protect us.”

But the reality is that only with militant advocacy have these protections been preserved. The fragility of the amendment has been evident since before the Constitution was ratified. It was opposed by most of the framers — federalists who allowed for the inclusion of the Bill of Rights only as a concession to placate the anti-federalists who were skeptical of the 55 wealthy elites who produced the Constitution in secret and believed “the evils we experience flow from the excess of democracy.”

Since then, the values in the First Amendment have been undermined many times. Examples abound: John Adams jailed dissenters and journalists with the Alien and Sedition Acts. Eugene Debs was jailed for years by the (still existent) Espionage Act of 1917 for giving an anti-war speech. More recently, the Obama administration waged a war against whistleblowers and spied on the Associated Press.

Our First Amendment rights are in even greater peril given Trump’s open hostility toward the media. Six reporters were charged with felonies for committing the apparently criminal act of journalism at Trump’s inauguration (see Truthout’s statement of solidarity). And the anti-Semitic, Islamophobic white nationalist Steve Bannon called the media an “opposition party” that should “keep their mouths shut.”

If most Americans previously held the belief that the First Amendment will always protect their rights to free speech and a free media, the actions of Donald Trump — just weeks into his reign — should awaken them from the slumber. Media activism, and specifically the function of the FCC, has arguably never been more important.

“We need to fight for a free press and free speech, and it has to be the grassroots,” said Copps, who serves as an advisor at Common Cause, a national organization that fights for democratic reforms. “People have to fight for it…. The media won’t cover [these issues].”

A New Era of Media Consolidation

It is indeed rare for the media to cover how the industry’s increasing concentration hurts democracy. Such journalism would put the profits of Big Media in jeopardy. The dearth of coverage has limited study on the issue, but the available literature on the subject is unambiguous. A study published by the Journal of Politics on media coverage of concentration resulting from the Telecommunications Act of 1996 — the most damning loosening of ownership restrictions in the FCC’s history — found “substantial differences in how newspapers reported on these proposed regulatory changes depending on the financial interests of their corporate owners.”

But despite the media’s tendency to ignore or dismiss such concerns, the issue of ownership is vital in any discussion of a free press. “Critics of concentration rightly view the media as a huge, non-democratically organized force that has major power politics, public discourse and culture,” observed media scholar C. Edwin Baker, in his book, Media Concentration and Democracy: Why Ownership Matters. Baker lamented an FCC whose actions too often “lie in the power and economic self-interest of major media companies.”

Pai, however, doesn’t see media concentration as a threat to the First Amendment. In fact, he has oddly argued that the threat to the First Amendment lies in limits on such concentration. Bloomberg reports that Pai believes that existing rules are “obsolete,” and the industry is already anticipating that he will relax current ownership restrictions.

Of immediate concern to reformers and the industry is the proposed $85 billion merger of Time Warner and AT&T, which Free Press argues “would create a television and Internet colossus like no other.” The danger of this merger managed to unite Senators Mike Lee (R-Utah) and Amy Klobuchar (D-Minnesota), who issued a joint statement arguing the transaction would “raise significant antitrust issues.” The deal is seen as part of a new era of consolidation involving megamergers between media companies and satellite and cable providers. Comcast’s acquisition of NBC Universal, denounced by media reform activists, is an early example of this.

Trump has publicly vowed to stop the merger, but organizers are not buying it. “Trump hates CNN. I think Trump was trying to fire a shot at Time Warner [which owns CNN], but the reality is that his FCC transition team was always pro-merger, and the same is true of Pai,” Karr said.

This new kind of consolidation is not likely to end with Time Warner/AT&T. On January 27, the Wall Street Journal reported that Verizon is “exploring a merger” with the cable/telecom giant Charter Communications, a prospect which tech reporter Chris Mills said “is terrifying for anyone with an internet connection.”

With Pai in charge, the prospects for the approval of mergers are significantly improved. His appointment has some tech companies “salivating,” according to the financial news service, The Street. “Although many of President Donald Trump’s cabinet nominations and government appointees have been mired in controversy, one of the more influential for a large swath of the U.S. economy and markets is barely registering with the media,” the report said.

Media Lobby: Full Speed Ahead

While some of this merger talk is speculative, one thing is certain. “With such high stakes, the media and telecom lobbies are powerful and working full bore in Washington,” Copps said.

In the House of Representatives, media issues are handled by the Committee on Energy and Commerce, and more specifically, the Subcommittee on Communications in Technology (whose members have been named for both parties).The chair of the subcommittee is Rep. Marsha Blackburn (R-Tennessee) who, as Karr notes, is “awash in money” from the major lobbies.

But Blackburn is hardly alone. Cross-referencing members of the committee with donations from these industries is a dizzying exercise. According to the most recent data from the Center for Responsive Politics, Time Warner has donated more money to the Commerce Committee than any other committee, more than double that of the next largest recipient, the Judiciary Committee. The same is true of AT&T, the other half of the pending merger that will more likely face hearings, and the National Association of Broadcasters (NAB) and Comcast donate money along similar lines.

Among the top industries donating to Blackburn in the recent cycle were telecom services, TV utilities and telephone utilities. The companies to donate the most to Blackburn were Verizon, Comcast, AT&T, Charter Communications and the National Cable and Telecommunications Association (NCTA). Vice Chairman Leonard Lance’s top industries include telecom services and telecom utilities, with specific donors including AT&T and NCTA.

Telecom services is also the fourth-largest industry to donate to Michael Doyle, the ranking Democrat on the committee. His largest donors include Comcast and the Communications Workers of America, one of the rare unions to oppose net neutrality protections. The National Association of Broadcasters has donated to 21 members of the subcommittee, 15 of them Republicans.

The End of Net Neutrality?

There can be no doubt about the power and aggressiveness of these industries. The Center for Responsive Politics’ records show 560 clients for the telecom industry who spent $87 million in 2016. The spending is reflective of how high the stakes are for media policy debates in the coming years. Decisions by Pai and Trump could lead to the end of net neutrality, which protects consumers from corporations that seek to commodify the internet and dictate which sites are most accessible. The majority of people, including conservatives, are supportive of net neutrality in polls.

Pai and other conservatives will occasionally claim to support the principles of net neutrality. Organizers, however, warn that these are misleading claims. Despite offering lip service about an open internet, Pai opposes any regulation with teeth to enforce these protections. Tom Wheeler, Obama’s final FCC chairman passed significant reforms on this issue. But Pai opposed them, arguing in his dissent that he was “sad to witness” this “unlawful power grab.” This is why militant conservatives like Laura Ingraham and Michelle Malkin cannot resist making giddy tweets in praise of Pai and his metaphorical gardening equipment:

Change is here! @AjitPaiFCC firing up his regulatory weed whacker==> https://t.co/9hm5MOgAoN

— Michelle Malkin (@michellemalkin) January 24, 2017

Malkin’s vigorous support of America’s Japanese internment camps bears unsettling similarities to Trump’s authoritarian agenda. It appears she also shares his administration’s contempt for the FCC as a regulatory agency. She has described the FCC as “internet traffic cops,” in a blog post titled “Internet access is not a civil right.”

Copps, on the other hand, sees the issue of net neutrality as a defining one for advocates of media reform. “People see climate denialists at the EPA and are rightly concerned,” Copps said. “Well, Trump just appointed a net-neutrality denialist at the head of the agency. This is how people should look at this issue.”

Opposing Prison Phone Justice

Another troubling part of Pai’s past is his opposition to prison phone justice. For years, prison phone services have been privatized, and companies have charged exorbitant amounts of money for prisoners to make calls — a burden placed upon their families, who are overwhelmingly low-income. In 2015, as a Truthout op-ed documented, this $1.2 billion industry, rife with corruption and bribery scandals, was finally required by Wheeler’s FCC to lower these costs.

Pai voted against the modest, humane reforms.

“The Commission’s decision today is well-intentioned, and I commend the efforts of those working to reduce the rates for inmate calling services,” Pai wrote in his dissent. “Unfortunately, I cannot support these particular regulations because I believe that they are unlawful.”

In November 2016 a federal appeals court blocked the FCC’s efforts to reform the process. The Wheeler-led FCC was still fighting the issue in the courts, but the new Republican majority wasted little time in dropping the defense of rate caps altogether — a distressing sign of things to come with Pai in charge.

To this day, prisoners and their families are suffering from this injustice. “It costs $3.15 for a 15-minute phone call inside here,” says John Broman, a federal prisoner who writes about his life in prison, in an interview with Truthout. “For the people that rely on a $5.25 paycheck once a month, it comes down to soap or a call to their family, which really isn’t right.”

Media Activism and Resistance to Trump

Media activists emphasize that all of the Trump administration’s brutal policies will be exacerbated by its egregious media policy agenda.

“Whatever you think is the most important issue,” Copps said, “media policy should be next on your list. There will be no change on the issue you care about the most without a strong media.”

For instance, an FCC that is hostile to a free press doesn’t cause climate change, but if private capital controls virtually all media, there will be no serious national discussion on the subject. Media touches everything. “In any large society, mass media is probably the most crucial instructional structure in the public sphere,” Baker writes.

The good news is that millions have protested Trump’s agenda. But efforts to fight for justice will be limited if Trump can trample the press and the open internet. Advocates are hopeful that the widespread resistance to Trump will include the struggle for a free press.

“Millions of Americans from across the political spectrum have looked to the FCC to protect their rights to connect and communicate,” said Free Press CEO Craig Aaron on the day Pai was appointed. “Those millions will rise up again to oppose his reactionary agenda.”