Donald Trump had spent much of his first year as president attacking news organizations whose reporting he considered unfair.
On October 11, 2017, he went considerably further.
After NBC News published a report saying Trump had discussed dramatically increasing the size of America's nuclear arsenal, the president denied the story and publicly raised the possibility of using government broadcast licensing against NBC and other television networks.
“Fake @NBCNews made up a story that I wanted a ‘tenfold’ increase in our U.S. nuclear arsenal,” Trump wrote. “Pure fiction, made up to demean.”
Then came a second message:
“With all of the Fake News coming out of NBC and the Networks, at what point is it appropriate to challenge their License? Bad for country!”
It transformed an argument between a president and a news organization into something more consequential.
The president of the United States was suggesting that unfavorable journalism might justify government action against broadcasters.
The Nuclear Weapons Story
The confrontation began with an NBC News report about a July 2017 meeting involving Trump and senior national-security officials.
According to NBC, Trump had been shown a chart illustrating the decline in the American nuclear stockpile since its Cold War peak.
NBC cited three officials who had been present and reported that Trump responded by indicating that he wanted a much larger arsenal — an increase that officials interpreted as approaching ten times the existing level.
Trump categorically disputed that account.
Speaking to reporters later on October 11, he said he had never advocated such an expansion.
“We don't need an increase,” Trump said.
What he wanted, he explained, was modernization and rehabilitation of America's existing nuclear forces.
Trump had every right to dispute NBC's reporting.
Presidents routinely challenge news reports they believe are inaccurate. Administrations issue corrections, release competing information, criticize anonymous sourcing and accuse journalists of misunderstanding events.
Trump did something different.
He raised the possibility of government licensing consequences.
“Challenge Their License”
Trump's tweet immediately presented a practical problem.
NBC News did not possess a single federal broadcasting license that a president could simply revoke.
The Federal Communications Commission licenses individual television stations that use the public airwaves.
NBC's network programming is distributed through numerous local stations, including stations owned by NBC's parent company and independently owned affiliates.
Cable networks operate under a different system altogether.
More importantly, the president does not personally control those licenses.
The FCC is an independent federal agency.
Its commissioners are nominated by the president and confirmed by the Senate, but the White House cannot simply order a station off the air because the president dislikes a news report.
That separation is crucial.
If presidents could threaten broadcasters' licenses whenever they considered coverage unfair, the government's regulatory authority could become a powerful weapon against critical journalism.
Trump Escalates the Attack
Trump did not leave the matter with his morning tweets.
Later that day, while meeting Canadian Prime Minister Justin Trudeau at the White House, Trump again attacked the NBC report.
He reiterated that he wanted America's nuclear weapons properly maintained rather than multiplied tenfold.
Then he turned again toward the press.
“It is frankly disgusting the press is able to write whatever it wants to write,” Trump said.
That statement struck directly at one of the central ideas behind the First Amendment.
In the United States, the press generally is permitted to publish what it chooses without obtaining government approval beforehand.
That freedom is not unlimited.
News organizations can face defamation lawsuits. Journalists are subject to laws governing matters such as classified information, privacy and access. Media companies can be sued and held accountable through the courts.
But the government does not normally decide which political reporting is acceptable before allowing it to be published.
That principle is one of the foundations of American press freedom.
The First Amendment Problem
The First Amendment says that Congress shall make no law abridging freedom of speech or of the press.
Over generations of court decisions, those protections have become powerful barriers against government attempts to punish or suppress journalism based on its political content.
That does not mean broadcasters are completely unregulated.
Because broadcast stations use portions of the electromagnetic spectrum allocated by the government, the FCC licenses stations and establishes technical and other regulatory requirements.
But those licensing powers cannot simply become a mechanism for punishing unfavorable political reporting.
Trump's suggestion therefore raised a serious constitutional question:
Could a president use federal regulatory power against news organizations because he believed their journalism was false or unfair?
FCC Chairman Ajit Pai eventually answered that question clearly.
Several days after Trump's remarks, Pai said the FCC did not have authority to revoke a station's license based on the content of a particular newscast.
“I believe in the First Amendment,” Pai said.
“The FCC will stand for the First Amendment.”
Republicans Also Push Back
Concern over Trump's remarks wasn't limited to Democrats or journalists.
Republican Senator Ben Sasse of Nebraska publicly challenged the president.
Sasse asked whether Trump was abandoning the oath he had taken to “preserve, protect, and defend” the Constitution and its First Amendment protections.
That criticism was significant.
The controversy wasn't simply another partisan dispute over whether NBC treated Trump fairly.
The larger issue was whether the federal government should have any role in deciding whether a news organization deserved access to the airwaves based on how it covered the president.
NBC Wasn't Required to Agree With Trump
There was also an important distinction between disputing a news story and punishing the organization that published it.
Trump said NBC's nuclear-weapons story was false.
NBC stood behind its reporting.
Those two positions could be debated.
NBC could produce additional reporting.
The White House could release evidence contradicting NBC.
Other journalists could investigate the meeting.
Readers and viewers could decide which account they found more convincing.
That is how a free press is supposed to function.
The government threatening the regulatory status of the organization producing the report introduces something entirely different.
It introduces governmental power into a dispute over journalism.
Trump Had Been Attacking the Press for Months
The October 11 confrontation did not occur in isolation.
Trump had repeatedly described major news organizations as “fake news.”
He had called parts of the press the “enemy of the American people.”
He routinely singled out CNN, The New York Times, The Washington Post and NBC for criticism.
Only days before the NBC licensing controversy, Trump had publicly asked why the Senate Intelligence Committee wasn't investigating what he called “Fake News Networks.”
The October 11 comments represented another escalation.
Instead of merely criticizing journalists, Trump was openly discussing whether broadcasters' government licenses should be challenged.
Criticism Is Protected Too
Trump's own attacks on NBC were themselves protected political speech.
A president has the same ability to criticize journalists as anyone else.
Trump could call NBC inaccurate.
He could accuse reporters of bias.
He could describe stories as fake.
He could encourage Americans not to watch a network.
He could publicly present evidence that he believed proved NBC wrong.
The constitutional concern arose when the discussion moved from criticism to the potential use of government authority.
The president isn't simply another television viewer.
The executive branch oversees agencies with enormous regulatory powers.
When a president suggests that government licenses should be challenged because of news coverage he considers false, the statement carries implications that an ordinary complaint about journalism does not.
October 11, 2017
NBC's report concerned nuclear weapons.
Trump said it was false.
That disagreement could have remained a dispute over sourcing, accuracy and what actually happened inside a classified national-security meeting.
Instead, it became a debate about something much larger.
Could the government punish a broadcaster for journalism the president considered unfair?
The answer from the FCC chairman was ultimately no.
The First Amendment protects news organizations precisely because political leaders will sometimes hate what they publish.
On October 11, 2017, Donald Trump publicly suggested testing that boundary.