News Distortion: The New Fake News

Philip M. Napoli is the James R. Shepley Professor of Public Policy and the Director of the DeWitt Wallace Center for Media & Democracy in the Sanford School of Public Policy at Duke University.

Ten years ago, the term “fake news” exploded into the American lexicon. The term meant different things to different people, but most importantly—and most destructively—it became a way for candidate Donald Trump and, later, President Donald Trump to dismiss and discredit unfavorable reporting. When Trump declared a news report to be fake news, his supporters inevitably agreed, with the truth-telling function of journalism dramatically undercut as a result. “Fake news” became a rhetorical tool for delegitimizing journalism amongst a large swath of the electorate.

Given the political value of the fake news concept for the first Trump administration, it should come as no surprise that the second Trump administration has figured out how to add some new wrinkles to its assault-on-journalism playbook. Enter “news distortion.”

Spearheaded by Trump’s Federal Communications Commission (FCC) Chair, Brendan Carr, the term news distortion comes from some heretofore little-known FCC regulations that have existed since the 1960s. These regulations, which apply exclusively to broadcast licensees, stipulate that any documented evidence that a broadcast station intentionally engages in “rigging” or “slanting” of news can result in fines or the loss of a broadcast license. The regulations emphasize that absent a “compelling showing,” such as written testimony from a station employee that management or ownership is mandating the rigging or slanting of news broadcasts, the FCC will not intervene. Statements of opinion, or unintentional factual errors, do not trigger the FCC’s news distortion rules.

These regulations sound reasonable. Broadcasters are, after all, licensed by the federal government to serve the public interest. Yet they are an anomaly in a First Amendment tradition that has provided considerable protection for intentional falsity. Consequently, the FCC has seldom pursued news distortion cases. Any FCC finding of news distortion is inherently vulnerable to a First Amendment challenge. Consequently, the news distortion rules have, for the most part, gathered dust in an obscure corner of the American media regulatory framework.

Until recently.

Now, Chairman Carr is seeking to revitalize the news distortion rules and weaponize them in a manner similar to how Trump weaponized the notion of fake news. Only this time, the strategy is not just rhetorical: Trump and Carr are bringing the full force of the federal government to bear to intimidate news organizations into submission.

In the wake of Trump’s inauguration, Carr reopened previously dismissed news distortion complaints filed against ABC and CBS stations by the Center for American Rights, a conservative, non-profit law firm. These complaints allege that ABC’s fact-checking of Trump during a 2024 presidential debate and CBS’s editing of an interview with Vice President Kamala Harris represent cases of news distortion. Both of these inquiries are ongoing.

Neither of these cases comes anywhere close to meeting the bar for news distortion. As a bipartisan consortium of previous FCC commissioners noted, the circumstances warranting a news distortion investigation “are not remotely present.” A coalition of conservative organizations even sent a letter to Carr, characterizing the investigation into CBS as “regulatory overreach” and asking that it be terminated immediately.

These are not Carr’s only efforts on the news distortion front. Last week, Carr posted a threat to Comcast (owner of NBC, some affiliated broadcast stations, as well as the MSNBC cable news network), due to his dissatisfaction with the company’s coverage of the case of Kilmar Abrego Garcia, the Maryland man who was mistakenly deported to an El Salvadorian prison. According to Carr, “Comcast outlets spent days misleading the American public. . . . Comcast knows that federal law requires its licensed operations to serve the public interest. News distortion doesn’t cut it.”

Curiously, Carr’s post also included screenshots showing that, unlike Fox News, MSNBC had opted not to provide live coverage of a White House press briefing defending its actions in the deportation of Garcia.

News distortion rules do not apply to cable networks such as MSNBC. Further, the FCC has previously determined that news reporting activities in non-broadcasting contexts have very limited applicability to broadcast license renewals. Even Fox News’ blatant and intentional falsities related to the 2020 election, which led to a nearly $800 million settlement with Dominion Voting Systems, were found by the FCC to not fit within “categories of relevant non-FCC-related misconduct,” when considering a petition to deny the license renewal of a Fox-owned TV station in Philadelphia.

Nonetheless, here was Carr apparently lumping his displeasure with MSNBC into the threat of a news distortion investigation of Comcast. Should Carr have the FCC reverse course and consider the reporting of affiliated non-broadcast news outlets when evaluating the performance of broadcast licensees, then not only cable, but also print and digital news reporting could all provide rationales for the FCC to go after news organizations.

Like so many components of the second Trump administration, this iteration of the FCC is pursuing its goals in ways that veer dangerously toward authoritarianism. A key part of this process involves the dismantling of independent news media. Carr’s weaponization of the news distortion rules appears to be a small part of a larger coordinated strategy that includes defunding public broadcasting, filing lawsuits against news organizations, and denying the press access to government facilities and information.

It is unfortunate that regulations such as the news distortion rules, which on paper sound like a reasonable safeguard against egregious efforts to package disinformation as journalism, now serve as a handy tool for attacking the press. We now have the kind of government that First Amendment absolutists have long referenced as the potential worst-case scenario that provides the logic for rejecting even the most narrowly tailored regulations of speech or the press.

The catch-22, however, is that the rise of this worst-case scenario is, in part, the result of a speech environment in which disinformation and hate speech have been allowed to circulate unchecked, and in which the evolution of media technology has helped this disinformation and hate speech circulate with a velocity, reach, and tactical precision that the drafters of the First Amendment never could have imagined. This is the modern paradox of free speech.

Which brings us to where we are now – with the acolyte of an aspiring authoritarian president willing to abuse the limited government authority over speech as a means of silencing and intimidating the free press. The transition from fake news to news distortion opens the doors to a type of direct governmental attack on the press—and consequently on democracy—that even the first Trump administration did not pursue.