Baltimore’s chief prosecutor has asked the Federal Communications Commission to stop a local Fox News affiliate’s negative coverage about her, claiming that the “tone of the coverage” violates FCC rules.
The office of Marilyn Mosby, the Maryland State’s Attorney (SA) for Baltimore, filed the formal complaint last week against “FCC-licensed station WBFF, a Baltimore City-based Fox News-affiliated network.” The complaint asked acting FCC Chairwoman Jessica Rosenworcel and the rest of the commission “to enlist the full investigative and enforcement powers granted to you by the federal government to take action against the WBFF as soon as possible.” Mosby is a Democrat, and WBFF is part of the conservative Sinclair Broadcast Group.
The closest the complaint comes to alleging a factual error is in reference to a guest on one segment who said that Mosby is “a follower of the George Soros playbook, who’s… bought and paid for these elected DAs.” The complaint said that “State’s Attorney Mosby has never received a penny from George Soros or any of his political groups.” However, that segment was made by one of Sinclair’s national shows that runs on many stations and was not produced by WBFF.
Constitutional right of free press
The Radio Television Digital News Association urged the FCC to reject Mosby’s complaint, saying that “local journalists across the country have a Constitutionally guaranteed obligation to serve their communities by seeking and reporting the truth, often by reporting on the public activities of public officials.”
Mosby’s complaint points to an FCC rule that says, “[b]roadcasters may not intentionally distort the news,” and claimed that “WBFF persistently follows a disconcerting and dangerous pattern: beginning with a slanted, rigged, misleading, or inflammatory headline; followed by a conspiracy theory; and supported with guest commentary from disgruntled ex-employees or political opponents that lend false credibility to their biased coverage or omission of facts. Utilizing this pattern of practice in their broadcasts, citizens are not only consistently misinformed about the basis and intent of prosecutorial policies, additionally the merit of criminal convictions are distorted to detract from the public good championed by prosecutors.”
The complaint said that WBFF ran 248 stories about Mosby in 2020 and 141 so far in 2021, far more than any other Baltimore station. “While the frequency of coverage in question by the WBFF would give any reasonable person pause, it is the tone of the coverage that violates the FCC rules,” the complaint said. “The coverage by the WBFF represents acts that are not merely against the public interest; they also represent acts that are inflammatory against the safety of an elected official. In the public sphere, Fox News is infamous for its bias against people of color, and even more against those who could be deemed ‘progressive’ people of color.”
The FCC is highly unlikely to revoke a license or otherwise punish a news station for the “tone” of its coverage. As an FCC document explains, “the First Amendment and the Communications Act bar the FCC from telling station licensees how to select material for news programs or prohibiting the broadcast of an opinion on any subject.” The FCC further explains why it rarely intervenes in claims of news distortion:
The Commission often receives complaints concerning broadcast journalism, such as allegations that stations have aired inaccurate or one-sided news reports or comments, covered stories inadequately, or overly dramatized the events that they cover. For the reasons noted previously, the Commission generally will not intervene in these cases because it would be inconsistent with the First Amendment to replace the journalistic judgment of licensees with our own. However, as public trustees, broadcast licensees may not intentionally distort the news. The FCC has stated that “rigging or slanting the news is a most heinous act against the public interest.” The Commission will investigate a station for news distortion if it receives documented evidence of rigging or slanting, such as testimony or other documentation, from individuals with direct personal knowledge that a licensee or its management engaged in the intentional falsification of the news. Of particular concern would be evidence of the direction to employees from station management to falsify the news. However, absent such a compelling showing, the Commission will not intervene.
Mosby’s three-page complaint doesn’t refer to any “documented evidence of rigging or slanting” along the lines of what the FCC would require to take action.
The FCC says the broadcast of hoaxes concerning crimes or catastrophes can violate the commission’s rules but only if the “station licensee knew that the information was false; broadcasting the false information directly causes substantial public harm; and it was foreseeable that broadcasting the false information would cause such harm.”
Mosby alleges “pointed threat” to her safety
Mosby’s complaint said that “WBFF deliberately broadcast the home address of State’s Attorney Mosby on live TV during one of its news segments” and “made a formal inquiry attempting to find out the schools the SA’s children attended.” Saying that Mosby “has received innumerable personal death threats and hate mail, including letters describing how her husband would be killed on the steps of her home,” the complaint alleged that WBFF’s coverage is “malicious” and a threat to her and her family’s safety:
These threats against SA Mosby are facts known by the WBFF—they aired reports of the numerous death threats made against her. As such, when the WBFF network and its administrators willfully publicize the State’s Attorney’s home address, and when they take further steps to facilitate the publication of where her young children attend school, their acts rise beyond mere professional irresponsibility and become what can only be reasonably deemed malicious, against the public interest, and a pointed threat to the safety of the State’s Attorney’s life and that of her family.
Mosby’s complaint provided six examples of what it called “WBFF’s distorted coverage about the State’s Attorney’s Office and its leadership.” The headlines quoted in the complaint were as follows:
“To be clear, the State’s Attorney’s Office is not above receiving criticism,” the complaint said. “We welcome being held accountable, and we support First Amendment freedom of speech. However, what we find troubling, abhorrent, and outright dangerous, is that the distinctly relentless slanted broadcast news campaign, against the Baltimore City State’s Attorney’s Office and its lead prosecutor, has the stench of racism.”
“Direct attack on free speech” and journalism
Rosenworcel hasn’t weighed in publicly on Mosby’s complaint yet. She opposed then-President Donald Trump’s call for the FCC to “challenge” NBC’s license in 2017 because of what he deemed “fake news.” In 2020, Rosenworcel opposed Trump’s attempt to crack down on Facebook and Twitter, saying that the FCC must not become “the president’s speech police.”
FCC Republican Brendan Carr yesterday urged the commission to reject Mosby’s complaint, saying that Mosby “has launched a chilling and direct attack on free speech and journalistic freedom” and is trying to “censor a newsroom simply because journalists are doing their constitutionally protected jobs and shining a light on the work of the State’s Attorney.”
Unlike Rosenworcel, Carr cheered on Trump’s attempt to limit social-media sites’ ability to moderate and block content. Carr accused social media platforms of bias against Trump and called for “a neutral application of terms of service to all Americans.”
Mosby faces federal investigation
Regarding the Mosbys, Carr said, “It is particularly troubling that a public official would work to silence reporters that are investigating her work at a time when federal prosecutors have already opened a criminal investigation into her activities.”
Carr was referring to an investigation into Mosby and her husband, Baltimore City Council President Nick Mosby. In March, the Baltimore Sun reported that “[f]ederal prosecutors have opened a criminal investigation into Baltimore City Council President Nick Mosby and State’s Attorney Marilyn Mosby, subpoenaing her campaign and the couple’s business records, according to a grand jury subpoena.”
“The US Attorney’s office and the FBI requested a wide range of financial records related to the power couple: tax returns, bank statements, credit card statements, loan documents and canceled checks,” the article continued. “They subpoenaed Mosby’s campaign treasurer and requested records tracing back to 2014, some related to the Mosbys’ private travel and consulting businesses.” A lawyer for the couple called the probe a “baseless and politically motivated investigation” and said that the Mosbys “are high-profile public servants that fight everyday against systems of injustice, inequality, and racism” and “have been at the forefront of police accountability reform, criminal justice reform, and racial health disparities.”