Workers Independent News v. FCC: Down the Rabbit Hole

Last week’s post about the Federal Communications Commission’s backhanded ruling on the legitimacy of Workers Independent News has left a lot of folks scratching their heads—but, as one legal scholar-colleague told me yesterday, "the more I think about it, the angrier I get."
That’s because the FCC’s offhanded beef with Workers Independent News is not just some bureaucratic’s a bona-fide, no-shit free speech issue, in that the FCC has made a historically unprecedented determination about just what is and is not journalism, and it’s leading to a censorship of sorts on WIN itself.
Regardless of your political persuasion, this is a serious concern. And it cannot be left to stand, for while such precedential decisions often seem meaningless in the moment, they can grow into monsters if left unchecked. Witness the legal determination that corporations are people: first articulated offhandedly in 1886, it came full circle in 2010, when the U.S. Supreme Court ruled that money is speech.
I’ve written a PDF iconseven-page briefing paper that outlines the basics of what is shaping up to become Workers Independent News v. FCC: a novel First Amendment challenge in a relatively unexplored area of communications law. The paper covers the background of WIN and the FCC’s ruling, its implications, and next steps in confronting the agency’s decision.
On that front, the path is relatively clear. First the FCC’s ruling regarding the fine WLS received must be appealed—not because there’s a dispute over the fine itself, but because of how the FCC rationalized the fine (i.e., Workers Independent News is not news).
Administrative law is a curious domain, and the chances are good that the FCC will deny any petition out of hand, probably claiming that Workers Independent News does not have standing in a dispute between the FCC and a licensed radio station. However, exhausting’s one’s administrative remedies is essential to clear the field for an appeal to the D.C. Circuit Court of Appeals—the venue statutorily tasked with hearing cases on FCC regulatory decisions.
At this level, it appears that precedent does exist for third parties affected by such decisions to appeal them, especially if the parties can raise affirmative Constitutional defenses. As a bona fide news organization, the First Amendment rights of Workers Independent News are materially harmed by the FCC’s declaration of WIN’s news value. The principle is simple: the government has no business defining what news is.
If the FCC can not be convinced to see reason on this issue, and the D.C. Circuit takes the case, it can assign it to a sub-panel of judges or to the full 11-person court. Decisions of a smaller panel can be appealed to the full court; after that, the only stop left is the Supremes.
I certainly hope we do not have to go there, and that it does not take 124 years to resolve what is basically wildly irresponsible trash-talk from a brash FCC administrative law judge. But the game is afoot now.