stLouISTFederal agencies hijack the ‘public interest’ to attack free speech
The weaponization of the federal government against its critics used to be a Republican Party talking point when President Joe Biden was in office. Now that President Donald Trump’s in charge, it’s become their playbook.
Journalists and nonprofits, including nonprofit newsrooms, are particularly vulnerable to governmental attacks. Federal Communications Commission Chair Brendan Carr, for instance, has turned the investigatory power of the agency against the press, while the Department of Justice is pursuing investigations into nonprofits connected to left-leaning causes.
We wanted to learn more about how federal agencies like the FCC, Internal Revenue Service, and Department of Justice are abusing their authority to target First Amendment rights, so we hosted a discussion with FCC Commissioner Anna Gomez and Ezra Reese, an expert in nonprofit tax law and political law from the Elias Law Group.
As Commissioner Gomez said at the outset of the event, “The First Amendment is, of course, a pillar of American democracy, and consumer access to independent, unbiased news and public information is being threatened by the government itself.” Gomez is so concerned about the Trump administration’s attacks on freedom of speech that she’s launched a “First Amendment Tour” to speak out against what she calls a campaign of censorship and control.
With respect to the FCC, in particular, Gomez explained, “Our licensing authority is being weaponized to curtail the freedom of the press, and these actions set a dangerous precedent that undermines the freedom of the press and the trust in the FCC’s role as an impartial regulator.” Carr has revived, launched, or threatened a slew of baseless “investigations” into broadcasters and public media based on their First Amendment-protected activities.
As a result, Gomez said, broadcasters are being chilled. “I have heard from broadcasters who told me that they are asking their reporters to be careful about how they are reporting about this administration because they are so afraid of being dragged before the FCC,” she said.
Nonprofit organizations, including nonprofit newsrooms, are also feeling the chilling effect of investigations by the Department of Justice intended to silence critics of the administration. Reese described the DOJ’s targeting of nonprofit organizations as “terrifying,” citing investigations of environmental groups and Democratic fundraising outlets. One particular threat to nonprofits is the possibility of being designated a “terrorist” organization based on routine protest activity, Reese said.
In many instances discussed by Gomez and Reese, officials have hijacked vague legal standards to use them in ways that would threaten the First Amendment. The FCC, for instance, has brought investigations under its “news distortion” policy or sought to use its statutory language instructing it to license the airwaves in the public interest to go after news outlets it disfavors because of their coverage.
Gomez was highly critical of these moves, explaining, “The idea that the FCC would take enforcement action or revoke a broadcast license based on editorial decisions is antithetical to the First Amendment and the Communications Act, which prohibits the FCC from censorship.” As she succinctly put it, “The administration is conflating the public interest with its interests.”
Similarly, vague standards in criminal statutes or the tax code could also be used against nonprofits, including nonprofit news outlets, Reese warned. “The current law is very permissive to the federal government, either the president or using other agencies like the secretary of state declaring organizations to be terrorist organizations,” Reese said. “The standards are very loose.”
IRS standards that nonprofits rely on to guide their activities while maintaining their nonprofit status are also often “cobbled together” using administrative rulings by the IRS known as revenue rulings. These rulings, Reese said, “could easily be reversed.” For journalism nonprofits, in particular, Reese flagged that the precedents are “ancient” and do not address social media or shorter-form online journalism. While nonprofit news outlets have significant protections under tax law, Reese warned, “Any nonprofit organization should have some idea of what they’re going to do if the IRS or somebody else comes after them.”
In addition to being prepared, both Gomez and Reese emphasized the importance of speaking out in support of First Amendment rights. Reese cited the “power in shining a light,” noting that both journalists and individuals can bring attention to attacks but also to the organizations that are doing the right thing and fighting back. Similarly, Gomez said, “Sunshine is the best disinfectant, and we cannot allow this administration to trample all over the First Amendment in our democracy without speaking up.”
Gomez and Reese are right. The Trump administration’s attacks on the press and nonprofits are meant to cement government control by silencing dissenting voices. That’s why here at Freedom of the Press Foundation (FPF), we’ll continue to speak up against these abuses and encourage journalists and the public to do the same. Using our freedom of speech is our best and most powerful weapon for fighting back.