In the latest example of the FCC using its power to punish speech it does not like, FCC Chairman Brendan Carr made a statement on X, claiming there has been a “surge in entirely Fake Polls and Suppression Polls” that the FCC has the power to police — at least for broadcasters.
It’s worth reading the whole statement because it contains so many problems, including, but not limited to:
His claim to possess special knowledge as to what a good and accurate poll is.
His ability to judge the appropriate journalistic ethic or standard.
The idea that supposedly bad polls are election interference.
The claim that supposedly bad polls are news distortions or broadcast hoaxes.
The glaring discrepancy between how this statement would treat polls in broadcast media versus how they would be treated in every other form of media.
1. FCC Does Not Know Good versus Fake Polls: The statement begins with Carr’s assertion that there are too many “Fake Polls” and “Suppression Polls” and later that these “Polls lack a scientific, accurate, or even real basis.” Yes, there are polls that have more rigorous methodologies, and there are other polls that are not so rigorous. But this is normal political polling. Iowa, for example, has had several notable straw polls that are not statistically rigorous and yet are a recurring feature of Iowa politics, with the current Iowa Fair Straw Poll being reported by the Iowa Secretary of State.
Yet Carr isn’t merely making this simple distinction. He is claiming to know what polls are “Fake,” “Suppression,” or without any basis. But how does Carr know which polls are good and which are bad? For many polls, he can’t, and he is purposefully muddying the waters to make it appear as if he knows which polls are methodologically pure and which ones are somehow deceptive and unlawful. This is an apparent attempt to chill the speech of pollsters and broadcasters who might report polls that have outcomes unfavorable to President Trump or his party.
2. The FCC Is Not the Journalism Police. Carr’s statement also contains a blatant claim that journalists and broadcasters who air these supposedly fake polls are doing so “without regard to basic journalistic ethics.” Quite frankly, it is simply not the FCC’s job to police journalistic ethics. Yes, having a press with ethical standards is likely good for our society. But it should be up to Americans and their press to decide what those ethics look like. The idea that the FCC is the arbiter of proper journalistic ethics is anathema to the entire idea of a free press.
3. Polls Do Not Equal Interference. The next claim by Carr is that these polls “do nothing more than interfere with the regular functioning of the electoral process” and alter voter turnout. But how does he know that this is the sole purpose of these polls? Even if they are fake, as he claims, is the sole purpose of such polls to interfere? Online political polls, or polls conducted via campaign fundraising efforts, aren’t accurate but are common ways to drive interest and engagement for one’s own side. A pollster could also be making certain assumptions that seem wrong, but the pollster believes may be correct, even if not conventional wisdom.
Even if a poll is designed to dishearten one’s political opponents, that is not a crime. Campaigns regularly conduct internal polling using assumptions and methodologies that may favor their candidate, both to boost their own supporters’ confidence and to undermine their opponents’. Outside of polling, candidates and their supporters engage in a whole range of speech to show their side as better and winning, while showing their opponents as worse and running a losing campaign. This is all normal political expression that we allow free people to disagree about.
Indeed, this has been tested recently in court. President Trump and his supporters sued pollster J. Ann Selzer and the Des Moines Register over a 2024 poll that put Kamala Harris ahead of Trump, a result that proved far off the mark. Trump claimed that these polls were “so implausible” as to be a form of fraud and election interference. So far, both federal and Iowa state courts have roundly rejected these arguments, dismissing them pretrial because, as the Iowa judge found, the lawsuit seeks to turn “speech that enjoys the highest category of First Amendment protection into a liability.”
4. Reporting Polls Does Not Equal News Distortion or Hoaxes. The rubber really meets the road when Carr claims that airing such supposedly bad polls would run afoul of the FCC’s news distortion and broadcast hoax rules that flow from the FCC’s public interest standard. As I’ve written about many times before, these rules effectively act as FCC policing of what it deems misinformation, a process that is “hopelessly subjective and liable to abuse for political ends.” While prior administrations have weaponized these rules against media outlets on the right and left, the FCC under Chairman Carr has repeatedly declared that news unfavorable to the Trump administration may run afoul of them, only further proving my earlier warnings.
At the heart of these rules, however, is this notion that broadcasters have lost some portion of their First Amendment rights because the spectrum they use for broadcasting is a scarce resource, doled out and managed by the FCC according to what is in the “public interest.” As many others and I have written about, this entire argument is a house of cards. Lots of goods are scarce, and yet we don’t forfeit our constitutional rights to decide how we can use those goods or engage in expressive activities. Unfortunately, the Supreme Court endorsed this broad view of FCC powers decades ago in multiple cases, including NBC v. US in 1943 and in the 1969 Red Lion v. FCC. Congress, for its part, unwisely gave the FCC broad powers over broadcast speech rather than allowing property rights and a market to develop. Congress did at least include Section 326, a provision that formally forbids the FCC from censoring broadcast speech, which has been interpreted narrowly.
Broadcasting polls should not violate these rules or the public-interest standard; if it does, that is a problem with a censorious standard, not with the speech.
5. The Discrepancy between Broadcasters and Other Media. It is worth noting that under the status quo, the FCC can censor speech that would otherwise be entirely lawful, and attempts to say otherwise are thrown out of court. Journalists broadcasting a poll could be punished by the FCC, but if they publish it in a newspaper or on the internet, then it is entirely fine. This yawning gap between how speech is treated is increasingly plain for all Americans to see. For example, the FCC has tried to impose “equal time” rules on late-night comedians Stephen Colbert and Jimmy Kimmel for their interviews with Texas Senate candidate James Talarico. These rules would require the comedians to give equal time to Talarico’s opponents. So, to dodge these speech regulations, the late-night hosts simply posted the interviews online, where they drew more traffic.
These antiquated rules regulating and restricting broadcast speech are simply laughable, given that every other form of media rightfully operates in a competitive marketplace without censorship.
FCC Reform Needed
Every new overreach makes clear that the FCC should have its powers over speech removed. It doesn’t matter what political party is in power; these authorities will inevitably be abused to censor broadcast speech. The options range from challenging and changing the FCC’s public-interest standard and authorities in the courts and in Congress to abolishing the FCC and treating spectrum as a tradable property right, the way we do with so many other scarce goods. But for now, Americans should at least be able to agree that we don’t want the government policing essential political speech.
