Legends, Hoaxes and the Big Lie: The Right to Hoax

Here’s a bit of background. The (United States) Radio Act of 1927* declared the airwaves public property. Thus, in order to maintain their broadcasting privileges, radio stations had to air material in the ‘public interest.’ Congress also prohibited the Federal Radio Commission (FRC) from censoring any broadcaster.

Of course, the prohibition on censorship could come smack up against the public interest. As the law stood then, nothing stopped broadcasters from broadcasting material injurious to the public interest. For example, a broadcaster could read Penthouse-style letters over the air, all day long if he/she took the letter of the law to the extreme.**

Seven years later, Congress passed the Communications Act of 1934,*** partly to clarify some of the issues the previous legislation muddied up. First of all, they defined censorship as ‘prior constraint.’ In other words, if a broadcaster really wants to read Penthouse-type letters over the air, there would be nothing that the FRC (or its successor, the Federal Communications Commission) could do to stop it. What the FRC and FCC could do, however, was to note any and all transgressions committed by a broadcaster, and take sanctions against them, either immediately or in the future. When it came time for that broadcaster to renew his or her FCC license, the agency could cite examples of obscenity as incongruous to the public interest, and thus refuse to grant a new license–a punishment that could cost the broadcasters untold millions. The FCC could also take less drastic action, such as suspending a license, or exacting a fine against a broadcaster for not airing material consistent with the public interest–whatever that is.****

You see, Congress made numerous references to ‘public interest’ in the text of the Communications Act. Problem was, they still didn’t clarify what the term meant, in essence defining it as “that which interests the public.” This presented a problem both to broadcasters and the actual public. If we don’t know what our interests actually are, how can we tell if they’re not being served? If you’re a broadcaster, how would you know if you’re screwing up?

Over the years, the FCC has issued a number of guidelines to help broadcasters navigate the sometimes treacherous waters of public interest. These are different from FCC regulations, which are defined by Title 47 of the US Code. FCC regulations are highly technical and legalistic, dealing with such matters as transmitter strength, the saturation of markets by a single owner, and so forth. FCC guidelines, on the other hand, caution broadcasters against such things as saying George Carlin’s seven dirty words, letting Janet Jackson bare her nipple during the Super Bowl, graphic sex and violence during family hour, and out-and-out lying to the public.

Most people confuse FCC regulations with FCC guidelines. The regulations establish broadcast law. The guidelines address content within the context of public interest. In effect, the guidelines are there to tell broadcasters “Look, follow these suggestions, and you won’t have any problems from us, especially when you renew your license.”

This distinction between FCC regulations and FCC guidelines would form the basis of Fox News’ appeal of the jury verdict against them in the suit brought by reporter Jane Akre. Florida’s Whistle-blower’s Act indeed provides relief for employees who are wrongfully terminated for reporting a violation of law:

It is the intent of the Legislature to prevent agencies or independent contractors from taking retaliatory action against an employee who reports to an appropriate agency violations of law on the part of a public employer or independent contractor that create a substantial and specific danger to the public's health, safety, or welfare. It is further the intent of the Legislature to prevent agencies or independent contractors from taking retaliatory action against any person who discloses information to an appropriate agency alleging improper use of governmental office, gross waste of funds, or any other abuse or gross neglect of duty on the part of an agency, public officer, or employee.

Fox News argued that the Whistle-blower’s Act only counts if the employee reported a violation of law. The FCC guideline against lying was not a law, but rather a suggestion. As Fox attorneys put it, “The FCC’s policy against the intentional falsification of the news–which the FCC has called its ‘news-distortion’ policy–does not qualify as the required ‘law, rule, or application.'”

In other words, Fox argued that it didn’t matter that they lied, since there weren’t technically any laws to keep them from doing so, merely suggestions. Although one could possibly construe the FCC guideline as a rule or application, if not law, the Appellate Court sided with Fox, and vacated the jury verdict.

Not content to leave well enough alone, Fox then countersued Akre and Wilson for $1.7 million to recoup their court losses. A court finally ordered Wilson to pony up $156K for Fox attorneys.

Some critics have characterized the Appellate Court’s decision as upholding “the right to lie.” Counter-critics say that the decision did no such thing. Technically, the counter-critics are correct. After all, when it comes time to renew WTVT’s license, one can always argue that their dishonesty–as found by a jury in a court of law--runs counter to the public interest–whatever that is. Yet, it’s rare for the FCC to revoke a company’s license, and when it does its often for violating regulations, not for anything to do with the public interest. Simply put, if a broadcaster lies to its viewers, there’s little chance that someone will do something about it. So while the counter-critics are technically correct, the decision certainly gave Fox the ability to lie, and the de facto right to hoax.

After all the verdicts were in, Wilson and Akre left Florida for the cold winters of Detroit, where the former works as the chief investigative reporter for local TV station WXYZ. Earlier this year, WXYZ decided not to renew Wilson’s contract, so he’s planning on starting a not-for-profit news organization called the Michigan Center for Investigative Reporting. Currently, Akre serves as editor-in-chief of InjuryBoard.com. In 2003, they both participated in the filming of the documentary The Corporation

Figure 1. Wilson/Akre segment of The Corporation



Meanwhile, WTVT remains on the air as a network-owned Fox station.


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*Some texts refer to this as the Broadcast Act of 1927. Both terms refer to the same law.

** If you think that’s farfetched, click here to read about a service advertised on radio during this time.

***Some texts refer to this as the Broadcast Act of 1934. Both terms refer to the same law.

****It is a violation of federal law to air material that is obscene, so criminal sanctions could also apply. Problem is that it’s often extremely difficult to determine what fits the legal criteria for obscenity. Furthermore, such action doesn’t address the concept of prior restraint. And the FCC has no law enforcement capacity, so that would be in the purview of the FBI, US Marshals, or other federal agencies.